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BEN HARDIN: 



-HIS- 



TIMES AND CONTEMPORARIES, 



-WITH- 



SELECTIONS FROM HIS SPEECHES. 



BY 

LUCIUS P. LITTLE. 



■fco/v g ; , 

i .3I6B 7J 
/37* 






LOUISVILLE. 
Printed by the Courier-Journal Job Printing Company. 

1887. 






Entered according to Act of Congress, in the year 1887. by 

LUCIUS P. LITTLE, 
In the Office of the Librarian of Congress, at Washington. 



ILLUSTRATIONS. 



PAGE. 

I. Ben Hardin Frontispiece 

II. Lost in the Wilderness 13 

III. "\fhich is the Cheapest Tavern?" 67 

IV. William T. Barry 137 

V. "It Won't Hold Another Drap " 150 

VI. Return of the Prince 161 

VII. Autographs of the Bardstown Pleiades 173 

VIII. Federal Hill — Residence of John Rowan 177 

IX. Wickland — Residence of Charles A. Wickliffe 203. 

X. Specimen of Mr. Hardin's handwriting 235 

XI. Coon Hunting .... 279 

XII. John Rowan 291 

XIII. Henry Clay 349 

XIV. Ben Hardin's Residence at Bardstown 388 

XV. John Calhoon 480 

XVI. "Yea! yea! Benjamin" 500 

XVII. John L. Helm 518 

XVIII. John W. Stevenson 531 

XIX. Ben Hardin's Mill, on Stewart's creek, near Bardstown 561 

XX. Bardstown in 1887 595 

XXI. Boone's Grave 616 



CONTENTS. 



I. The Origin of the Hardin Family in America 1-9 

II. Birth and Early Life 10-21 

III. A Law Student 22-30 

IV. Professional Beginnings 31—37 

V. Outset in Political Life 38-46 

VI. The Kitchen Knife 47-64 

VII. An Old Time Salary Grab 65-76 

VIII. The Compromise Era 77-88 

IX. A Political Calm ... 89-98 

X. Relief and Anti-Relief 99-105 

XL Judge Breaking 106-136 

XII. A Case Affirmed 137-144 

XIII. Jacksonian Lights and Shadows 145—15 1 

XIV. In and Out of the State Senate 152-160 

XV. Household Gods 161-167 

XVI. The Pioneer Bar 168-171 

XVII. The Bardstown Pleiades - 172-212 

XVIII. King Jackson Subdues his Enemy 213-229 

XIX. A Sojourner 230-245 

XX. The French Party Defends Itself 246-275 

XXI. Mr. Hardin's Humor 276-288 

XXII. The Wilkinson Trial 289-323 

XXIII. Some Celebrated Cases 3 2 4-339 

XXIV. At the Bar— With Political Interludes 340-351 

XXV. Some Things Mr. Hardin Thought and Said of Others 352-360 

XXVI. A Question of Prerogative 3 6l ~467 

XXVII. The Circuit Bench for a Half Century 468-484 

XXVIII. Professional Characteristics 485-498 

XXIX. Court-House Reminiscence.^ 499-508 

XXX. The Cceur de Lion of Reform 5°9-5 I 5 

XXXI. The Constitutional Convention of 1840 5 l6 ~532 

XXXII. A Plea for the Clergy 533"539 

XXXIII. A Kentucky Master and his Relation to Domestic Slavery . . . .540-549 

XXXIV. Mr. Hardin's Opinions on Sundry Subjects 55°-55 8 

XXXV. Personal Traits 559-571 

XXXVI. Some Things Others Thought and Said of Mr. Hardin 572-581 

XXXVII. Close of Public Life 582-592 

XXXVIII. Mr. Hardin at Home 593~6oo 

XXXIX. A Lawyer's Theology 601-605 

XL. The End and How it Came 606-613 

XLI. Conclusion 614-616 

Appendix 617-640 



PREFACE 



Some readers may inquire why the life of Ben Hardin should be 
written. If it be answered, because he was a great man, the ques- 
tion will, doubtless, be retorted, how, and in what? The chapters 
that follow must, mainly, answer that question. What men have 
accomplished, is ordinarily accepted as a measure of their genius and 
power. That success is an evidence of ability is true, but the limita- 
tion of a career by casual or trivial causes, by no means proves lack 
of merit. Hampdens and Cromwells by scores rest in the obscurity 
of country church-yards. If one, in a long career, evinces integrity 
in temptation, strength in trial, courage in difficulty and danger, for- 
titude in adversity and disaster; and if, to the accomplishment of 
every high duty, he brings indomitable will and great talents, such a 
one better earns the laurel of the immortals than the graceless advent 
urer who " rides through slaughter to a throne." 

For a considerable period not far from the year 1820, there were 
four contemporaries from four different American States, whose nanus 
were household words throughout the western country. Between them 
were wide dissimilarities, and yet there were striking points of like- 
ness between the characters of all. They were strangely alike and 
unlike. Almost everything that was odd, grotesque, humorous, 
witty, or sarcastic in the current thought of their day was attributed 
to one or other of these four. Their real or supposed utterances 
were everywhere accepted as the mintage of genius. To their slight- 
est deliverances an admiring and partial public gave attentive ear. 
Between the backwoods Crockett, of Tennessee, and the polished 
Randolph, of Virginia, was a long step, but somewhere in the inter- 
val stood the exuberant Corwin, of Ohio, and the homely-witted 

(vii) 



Viii BEN HARDIN 

Hardin, of Kentucky. These four in their respective States were the 
exponents of certain phases of thought and sentiment, represented by- 
no others. To define exactly what these ideas were would, indeed, 
be difficult. They were not only all ultra in their republicanism, but 
they were the antipodes of all that was pharisaical, hypocritical, or 
pretentious in politics or morals. While anything but partisan lead- 
ers, they had easy and constant access to the popular heart. Wrong- 
headed they might be, but their sincerity no one ever doubted. To 
this sincerity, a close sympathy with the interests and feelings of the 
great mass of the people, and an uncalculating devotion to whatever 
they believed to be right, supplemented by unusual talents, may be 
attributed the renown enjoyed by these men. Crockett was rude and 
uncouth, but honest and heroic. To the homely sense of the back- 
woodsman, he joined a spirit as brave and chivalrous as any that fol- 
lowed the banner of the Black Prince against the Infidel. Randolph 
was a political Ishmaelite. Erratic in everything save his principles, 
he defied all opposition and scorned all difficulty. With all his 
impracticability, he was the High Priest of constitutional liberty, sac- 
rificing on its altar private interest and popular favor. Corwin was a 
genial man, overflowing in his sympathies — loving and beloved by 
the people among whom he dwelt. His wit and humor flowed in a 
perennial stream. Like the sun, it illuminated the National Capitol 
when statesmen were his auditors, and shone not less brightly for the 
inmates of the humble cabins of the Buckeye State. Crockett, Ran- 
dolph, and Corwin have all found biographers. In these pages a like 
service is attempted for Mr. Hardin, under the belief that his name 
should be written high in the catalogue of notable Americans. 

Various persons, at different times, have entertained the purpose 
of writing Mr. Hardin's life. Among others, the late Colonel Albert 
G. Hodges, long and favorably known in the State as editor of the 
Frankfort Commonwealth, made a collection of materials for a memoir, 
in which he had the aid of Mr. Hardin, but, unfortunately for the 
cause of literature, he postponed his work until overtaken by death. 
His collection has been lost — a loss that has not been and can not be 
supplied. Occasional writers have found in Mr. Hardin's life a rich 



PREFACE. 



IX 



field of reminiscence which has not been exhausted by frequent 
gleanings, yet all attempts at a formal biography have, thus far. 
proved abortive. On the Christmas eve of 1884, as the author sat 
alone by a bright and cheerful coal-fire, in the small town where 
his youth had been spent, reflection was busy with the "sad vicissi- 
tude of things." Ambng other matters, it was recalled how many 
men of genius, talent, and virtue had risen, flourished, and passed 
away in Kentucky leaving no adequate monument or record to per- 
petuate their memory. Orators, statesmen, and heroes, not second 
to any that have adorned any age or country, with names worthy the 
brightest pages of history, were being forgotten in the State that held 
their dust. Somewhat illogically. a resentful feeling arose against 
Boston, for no better reason than because that city was continually 
calling the muster-roll of its great and worthy children in the hearing 
of the world. Why should these New Englanders, it was solilo- 
quized, be thus perpetuated, while the memory of Kentucky's great 
sons hastens to that hopeless oblivion submerging the mound-builders? 
The sober second thought, however, acquitted the city of poets and 
philosophers, for, indeed, it was no more than faithful to its own off- 
spring — the highest of maternal virtues. Moreover, it would be 
ungrateful not to acknowledge the debt which all Americans owe to 
that great fountain of America-- thought. What earthly reason, 
indeed, had Kentuckians for complaint ? True they were not ready- 
writers, nor adept in the arts of literature, but still they could, at 
least, take mallet and chisel in hand, like "Old Mortality," and 
freshen and carve again the fading names on tottering and moss- 
covered grave-stones. 

As a sequel to this cogitation, the author, feeling his humble share of 
responsibility in the matter, resolved to essay something for the rescue 
and preservation of the memory of his dead countrymen. So it came 
that a subject was selected, and a circular letter devised and sent, with 
some misgivings, to many persons requesting information and material 
for this work, in which its principal subject was thus referred to : '"I 
have selected Mr. Hardin, of all that galaxy of great men among 
whom he flourished, not because he was necessarily greatest, but 



X BEN HARDIN. 

rather because his genius, more than that of any other, was indige- 
nous to his age and its surroundings. He was the product of his time, 
imbued with its spirit, and in sympathy with its thought and senti- 
ment. His career was a long and successful one. At its outset he 
became famous. Until the end — at the bar, on the 'stump,' in 
State and national councils — he extended, widened, and strengthened 
his early prestige. Always a mighty, intellectual force, he had the 
good fortune to impress himself and his characteristics on his day and 
generation as few have done.' 

To this appeal a generous response was made — so generous as 
greatly to encourage the author in the prosecution of his announced 
purpose. Nothing, it may be observed, has been discovered render- 
ing it necessary to qualify this early, brief, and hasty estimate, but, on 
the other hand, everything learned of Mr. Hardin has tended to illus- 
trate and confirm it. 

How far the query of the reader first supposed may have been 
answered by what has just been said or by the contents of this vol- 
ume will not be surmised, whatever hopes may be indulged. Not a 
little of American biography has been ancillary to political purposes, 
in which all the shaded lines of character have been studiously penciled 
out, and thereby a sort of moral emasculation effected. Such litera- 
ture is objectionable, in that it makes its subjects monotonously great 
and gifted. 

The present work will prove a marked contrast in this respect. 
The purpose has not been to write the life of a saint, or an impossible 
or improbable ideal, but rather faithfully to depict the manhood and 
character of one, who, with a full average of human infirmities, pos- 
sessed great talents, which he faithfully devoted to his State and gen- 
eration. To do this adequately, a sketch of his contemporaries and 
the events in which he and they bore part, was deemed necessary. 
To Mr. Hardin has been assigned the principal place in this portrayal, 
yet the noted men with whom he came in contact have had such 
brief justice done them as the exigency of the narrative would allow. 

In justification of this plan it must be remembered that many of 
the events and personages alluded to are not familiar to the general 



PREFACE. XI 

reader, and are not discussed elsewhere, or if at all but briefly, and 
in books not usually accessible. So digressions and details became 
necessary, which would not have been the case if Kentucky, and the 
South and West, had had more of a literature of their own. 

No effort will here be made to avoid or placate criticism. The 
work is imperfect, and no one can realize it more keenly and regret- 
fully than its author. Perhaps, one so little equipped for the task ; 
one whom the commoner but tyrannical cares of life left such brief 
intervals for its performance, should not have undertaken it. Con- 
fessing all, however, it is only claimed that, with such opportunity, 
material, and talent as he possessed, he has labored earnestly and 
faithfully to add to the store of knowledge something that will please, 
instruct, inspire, and elevate. 

The author makes his grateful acknowledgements for kindnesses from 
many friends in the preparation of this work. While the anticipation 
is pleasant that these may, to some extent, find realized whatever 
expectation may have been indulged, there were others whom he 
hoped to please, who, during its progress, have been summoned to 
their final account, and this reflection restrains and tempers the satis- 
faction he would otherwise experience at the end of his task. 

L. P. L. 

Owensuoro, K.Y., May, 1887. 



BEN HARDIN. 



CHAPTER I. 

ORIGIN OF THE HARDIN FAMILY IN AMERICA. 

THERE are several families in America bearing the name of Har- 
din without a common origin. Some trace their source to Great 
Britain, others to the continent of Europe, while others stop on the 
hither shore of the Atlantic. That family to which Ben Hardin 
belonged claims a Huguenot descent. This claim lies somewhat in 
tradition, but is so well authenticated as to amount to historical truth. 

In 1706 it was estimated that by the persecutions of the Huguenots 
France had lost more than a million of her most active, enterprising, 
and industrious inhabitants. Deplorable as these persecutions were 
to their hapless victims, they proved the source of unmixed blessing 
to the new world. Hither the fugitives came by colonies, by com- 
panies, and one by one. The exchange of the comforts and' luxuries 
of France for the privations and sufferings of the wilderness of America 
was a sore ordeal. Referring to their earlier experiences, it has been 
said that "the melancholy outline of Huguenot progress in the new 
world exhibits features of trial, strength, and suffering which render 
their career equally unique in both countries ; a dark and bloody his- 
tory, involving details of strife, of enterprise and sorrow, which denied 
them the securities of home in the parent land, and even the most 
miserable refuge from persecution in the wilderness of a savage 
empire."* The story of the Floridian Huguenots especially is one 
of the most pathetic in the early annals of America. 

The time of their coming and the point of debarkation had much 
to do with the happiness and destiny of these emigrants. It has been 
said of a colony which settled at Mannakin, on the upper James river, 
in 1699, tri at it " infused a stream of pure and rich blood into Virginia 
society." f Transplanted in the new world, the French fugitives 
became a vigorous, virtuous, and prosperous stock, from which some of 
the brightest names that adorn its history proudly trace their lineage. 

-Lilly ,-ind Totem, by W. Gilrnore Sims, page - . fCooke's Virginia, page 309. 



BEN HARDIN. 



After the massacre of St. Bartholemew— though how near that 
event traditions differ— three brothers, of the name of Hardin, fled 
from their native France. They first went to England, where their 
stay was short, thence emigrating to Canada. The considerable 
French population of the latter, no doubt, attracted them. The rigors 
of a climate to which they were unaccustomed, however, soon drove 
them southward. Two settled in Virginia, the third in South Caro- 
lina. Subsequent trace of the latter is wholly lost. One of those 
remaining in Virginia some time afterward fell a victim of the savage 
Indians. There is no means of fixing the time of these various events 

with certainty. 

The survivor of the brothers in Virginia bore the Christian name of 
Martin. Of his career and death no record is known. In her child- 
hood, Sarah Hardin, mother of Benjamin, knew him as a very old 
man, with a dark countenance and French dialect. Either he or a 
son of his of the same Christian name married a Miss Waters. Miss 
Waters was of English descent, and of her mother an interesting inci- 
dent is related by her descendants : In the early colonial days it was 
usual for emigrants, who had not the means to pay their passage from 
Europe to America, to be carried by vessels and hired out, or, as it 
was usually termed, "sold " by the ship-master for a certain period, 
thus to pay their passage money. There lived a gentleman some dis- 
tance from the nearest port where such help could be found, who had 
a large family. His wife, though an energetic woman, told him there 
was more work than she could do, and that he must go down to the 
port and buy a woman to help in household labor. Accordingly, he 
set forth on his journey, and, on his arrival at his destination, went 
among the passengers to be hired or sold, with a view to selection. 
His attention was attracted by a little girl, who sat alone and seemed 
without companions. He spoke to her and found her an interesting 
child of perhaps twelve years of age. He inquired who she was, and 
how she came to be there. She replied that she was an orphan ; that 
arrangements had been made for her to emigrate with parties who, at 
the last moment, had failed to come, and that she had been persuaded 
by others to come anyway. She had not fully comprehended matters, 
and only realized her forlorn condition at the end of the voyage. 

Her generous hearted listener was so touched by her simple story 
that he paid her passage and took her home with him. When the 
good housewife saw what he had done, she at first repudiated the trans- 
action altogether. She had told him, she said, to get a woman to do the 



THE LITTLE ENGLISH EMIGRANT. 3 

work, and instead he had brought her a child to raise. He might find 
another home, she said, for her, as soon as he could. She did not 
even inquire the name of the unwelcome newcomer. Before other 
quarters had been found for the little girl, her inhospitable hostess 
started on a visit from home for a few days. As was her custom she 
gave each of her children their task during her absence. When she 
had assigned to each sewing or knitting or whatever it was, the little 
stranger said, "What must I do? " "You do ! " said she, abruptly, 
"what can you do ? " The little girl meekly replied : " I can knit a 
little." The lady softened down so far as to say, " Well, here is a 
stocking just put on the needles ; you knit at that, and maybe some 
day you will have a pair of stockings." She left home and in a few 
days returned. Her children were called on to show their work. 
This done (she had heard the children calling the little girl " Rosa") 
she told Rosa, rather coldly, to bring her knitting and show what she 
had been doing. The child brought a pair of stockings nicely shaped 
and finished, which had been washed and put away in good order. 
' ' Who did this ? " said the astonished woman. " I did, " replied Rosa. 
" Who taught you how to knit?" "My mother." "Your mother ! " 
said the mistress, seemingly surprised that Rosa ever had such a rela- 
tion. "Yes, ma'am," replied the little girl. "Where did she live ? " 
Rosa described her English home. Rather quickly she was asked : 
"What was your mother's name?" She answered. Strange and 
admirable providence ! That child's mother had been the kind bene- 
factor who had taken that woman, when homeless and friendless, and 
raised her as her own child. The forlorn little Rosa had suddenly 
found a home. She became a member of the family, and in the end 
was portioned with the other children. She grew to womanhood and 
married a man named Waters. A daughter of this marriage was 
named "Rosa," and she it was who became the wife of Ben Hardin's 
ancestor.* Captain Philemon Waters, an early settler in Washington 
county, was a grandson of the little English emigrant. 

The name of Hardin does not suggest a Gallic origin. Through 
what changes its orthography has passed since the Huguenot brothers 
fled from France is, to some extent, a matter of speculation. As 
found in public records of a century ago, " e " is substituted for " i ' 
in the second syllable. Such seems to have been, at least, not an 
unusual mode of spelling at that time. In England, the name 
spelled this way is frequently met, and has been traced to Hareden 
or Hare-den as its root Harding or Hardynge is a common English 

"Letter of Hon. Martin D. McHenry. 






4 BEN HARDIN. 

form, but the Huguenot refugees brought with their French blood a 
French name. It has been supposed, by some, to have been origi- 
nally " H'Arding." It can be said, in favor of this supposition, that 
it, at least, harmonizes the theory of French descent. How easily 
H'Arding could change to Harding, and the latter to Hardin or Har- 
den is manifest. The theory that the name has passed through a 
transition state receives corroboration from the fact that the various 
branches of the family claiming a common origin differ in the orthog- 
raphy of their patronymic. Harding is a common form. Mr. Har- 
din, however, told General William Preston (on what data is not 
known) that, anciently, the name was " Hardouin." Persons bear- 
ing that name have long been distinguished in the annals of France. 

Martin Hardin, of Fauquier county, Va., was either a son or 
grandson of the Huguenot Martin, perhaps the former. He had a 
brother residing awhile in Virginia, who, it seems probable, emi- 
grated thence to Pennsylvania. That this brother's name was Benja- 
min has been suggested, but it is here only put down tentatively. 
Benjamin (if such was his name) was the paternal grandfather of Ben 
Hardin. 

About 1765, several of Martin Hardin's children, with their fam- 
ilies, removed from Fauquier county to George's Creek settlement, 
on the Monongahela river, in Westmoreland county, Pa. They 
had not intended to go, nor did they suppose they had gone, beyond 
the bounds of the Old Dominion. It was afterward discovered, how- 
ever, that their new home was in Pennsylvania. That this circum- 
stance caused the subsequent emigration to the West has been 
suggested, and seems probable. 

Of Martin Hardin's subsequent life no facts have been discovered, 
save that he made his will, in 1779, and died in Fauquier county, 
Va., the year following, leaving considerable estate.* He had several 
children — three sons, John, Martin, and Mark, and four daughters, 
Sarah, Lydia, Mary, and Rosannah. The following is a literal trans- 
cript of the family record, brought by Colonel John Hardin to Ken- 
tucky in 1786: 

" Mary Hardin, daughter of Martin and Lydia, his wife, was born Octo- 
ber ye 4, 1 741. 

"Sarah Hardin, was born March ye 10, 1743. 

"Lydia Hardin, was born April ye 10, 1748. 

"Mark Hardin, was born December ye 1, 1750. 

" John Hardin, was born October ye 1, 1753. 

•See Appendix. Note A. 



COLONEL JOHN HARDIN S CAREER. 5 

"Martin Hardin, was born February ye 1. 1757. 
" Rosannah Hardin, was born March ye 9. 1760." 

All of these children with their families, between 1785 and 1 790, 
removed to Kentucky, and all but Rcsannah settled in the same 
neighborhood, near what is now the town of Springfield. Man-, the 
eldest, married Robert Wickliffe, and on his death she married William 
Robinson. She lived to an advanced age, and was the only one that 
died childless. Sarah was the mother of Mr. Hardin, and of her men- 
tion is reserved for the next chapter. Lydia married Charles Wick- 
liffe, and bore four sons and five daughters. Of the former, the most 
distinguished were Robert Wickliffe, of Lexington, and Charles Ander- 
son Wickliffe, of Bardstown. Mark and Martin respectively lived to 
advanced age, and died on the farm which their industry and courage 
had rescued from a savage wilderness. 

John, usually known as Colonel John Hardin, achieved such a career 
by his daring, fortitude, and discretion as his surroundings permitted. 
He early learned the use of the rifle, for hunting was an almost uni- 
versal occupation, and the use of the rifle an indispensable part of 
frontier education. Indian hostilities soon commenced, and war 
afforded another demand for his skill. There were few schools, or 
means of literary culture. Hunting became his pursuit and delight. 
He was soon inured to hardships and became an expert woodsman. 
In 1774 he served as ensign in a militia company with Governor Dun- 
more's expedition against the Indians. October ioth. of that year, 
he took part in the battle fought at the mouth of the Kanawha, where 
Cornstalk commanded the Indians. Governor Isaac Shelby, then a 
young man of twenty-four, and his father. General Evan Shelby, 
largely contributed to the victory of the colonial troops. It was one 
of the bloodiest engagements that ever occurred between the whites 
and Indians, and none was ever more completely decisive in favor of 
the former. 

In August, 1775, under command of Captain Zach Morgan, during 
an encounter with the Indians, Colonel Hardin was severely wounded. 
Before his recovery he again joined Dunmore on his march to the In- 
dian towns. After peace with the Indians he prepared for a journey 
to Kentucky, but was prevented by the outbreak of the war with Great 
Britain. He then set about recruiting for the continental armv and 
shortly joined it as second lieutenant. In the service he was attached 
to General Daniel Morgan's rifle corps, which was usually on the 
lines. He was highlv esteemed bv Morgan, and often selected for 



6 BEN HARDIN. 

dangerous enterprises requiring discretion and intrepidity. He 
declined a major's commission and resigned the service December, 
1779.* 

In 1780 he came to Kentucky, probably accompanied by his kins- 
man, General William Hardin, who certainly came West that year. 
While in the State he entered large tracts of land in the names of and 
for his brothers, Mark and Martin, his brother-in-law, Benjamin Har- 
din (father of the subject of this biography), as well as for himself. In 
April, 1786, he removed his family to Kentucky. He was undoubtedly 
instrumental in the emigration of his kindred thither. It was that emi- 
gration which opened to the family the avenues of success, and part 
of all the fame that its members have won should be placed to his 
credit. 

In this connection it is proper to refer to another who made the 
name known and honored by the pioneers, and feared by their ene- 
mies at that period. General William Hardin, an uncle of the sub- 
ject of this work, was a native of Virginia, but afterward a citizen of 
Pennsylvania. Thence he emigrated to Kentucky. In one of his 
earliest visits he discovered the lands at Hardinsburg and vicinity, and 
there made a settlement. Block-houses and stockades were erected, 
and in 1782 he founded the town of Hardinsburg. In laying it off 
tradition has it, "his eye was his compass, his chain a grape-vine. "f 

General Hardin soon became known as a hunter and Indian fighter ; 
he had a large frame, great activity, and strength. He was of daunt- 
less courage and resolution — cool, calm, and self-possessed in face 
of danger. Skilled in all the details of border warfare, he was a nat- 
ural leader, and gifted in the art of command. In warfare he acted 
on the principle that the only effectual way to subdue the red man was 
to kill him. The pioneers, on account of his warlike proclivities and 
especial hostility to the red man, dubbed him "Indian Bill." The 
Indians designated him " Big Bill " from his size. 

The date of his birth is lost, but he was between thirty and forty 
years of age when he came to Kentucky. Some incidents related of 
him will illustrate the character of the man. One morning early, 
preparing for a hunt, he fired off his gun at the door of his cabin, and 
began cleaning it. An Indian, intending to take advantage of his 
defenseless condition, stepped from concealment behind the chimney, 
aimed his gun, exclaiming, " Hooh, Big Bill ! " It was a fatal pause. 
Hardin knocked off the Indian's gun, and brained him with his own. 

* Collins' History, Vol. II., page 315; Annals of the West by Perkins, pages 338-44, 350, 381. 
f Letter from Jack Hardin, Esq. 



"indian bill" hardin's adventures. 7 

About 1782, Hardin, in command of about eighty men, engaged 
in an expedition against a newly-built Indian village on Saline creek, 
in the present limits of Illinois. The main body of the Indians, 
about one hundred in number, were encountered near the village, and 
an obstinate fight took place. At the first fire Hardin was disabled 
by a shot through the thighs, but disregarding this severe wound — 
being unable to stand — he sat on a log during the engagement, giving 
orders and encouragement to his men, with the utmost coolness. 
After heavy loss on either side, the savages were repulsed. Hardin 
was transported by his surviving men to the south side of the Ohio, 
and, finding refuge at Fort Vienna, only recovered after long suffering. 
On another occasion, while on picket duty near the station, guarding 
those at work in a field, he was fired upon by Indians and severely 
wounded in the neck. Only by the assistance of an intrepid girl 
named McDonald was he enabled to escape his pursuers, and reach 
the block-house with his life. His ruling passion was hatred of the 
Indians. He hunted them as a sportsman hunts game. He lived 
until the country was freed from Indian depredation, and the larger 
game killed or driven off. He always carried his rifle, hunting-knife, 
and tomahawk.* His pioneer costume never varied — hunting-shirt, 
buckskin trousers, and moccasins. After the admission of Kentucky 
in the Union, he served in its Legislature. He died in old age, and 
sleeps in an unmarked and unknown grave, near the town he founded. 

The causes that induced the emigration of the Hardin family to 
Kentucky are readily conjectured. The country generally, east of 
the Alleghenies, was impoverished by the Revolutionary war ; a 
depreciated currency, prostrate trade, absence of markets, products 
without buyers, and buyers without money, was a distressful combi- 
nation. Emigration has been the remedy among all people, from a 
period long antedating that when the children of Jacob fled from 
Goshen to the promised land, for unbearable, as well as lesser ills. 

Accounts of General Hardin's adventures in the Far West (as it was 
then called) were repeated in the vicinity of his old Pennsylvania 
home. Colonel John Hardin had returned to tell of the country 
west of the Alleghenies ; to his enterprising spirit there was a charm 
about the hills and valleys and forests and streams, aye, about its very 
dangers, that would have escaped the eye of one less intrepid. Not 
only the Hardins, but other Pennsylvanians, as well also, as their 
neighbors in Virginia, had their eyes turned hopefully to the West. 



-Mr. Collins' History and an address by Wallace Gruelle, Esq., have been freely used in this notice 
of General Hardin. 



8 BEN HARDIN. 

In 1784, John Filson, a native of Pennsylvania, published his book, 
"The Discovery, Settlement, and Present State of Kentucke, " which 
circulated considerably in the Atlantic States. In this work the pleas- 
ing exaggerations of rumor received "black and white" confirma- 
tion. The author reveled in the beauty of forest and hill and stream 
and valley. A fertile soil was carpeted with a green sward of wild 
rye, clover, and buffalo grass. There were trees that supplied "ex- 
cellent sugar;" the honey locust that made good beer; the coffee tree 
that bore a "pod in which was inclosed coffee;" and, lastly, a paw- 
paw tree which bore "a fine fruit much like a cucumber in shape and 
size, that tasted sweet. " These rosy-colored arguments were of them- 
selves irresistible. So it was, whatever the inducement, between 1786 
and 1790 a generation of Hardins, with their wives and little ones, 
quit their homes on the Monongahela in quest of new ones in the dis- 
tant "dark and bloody ground." 

The following reference to the coming of the Hardins to Ken- 
tucky is from the pen of the late Mark Hardin, of Shelbyville, son 
of the patriotic Colonel John Hardin. It was written in 1869, when 
the writer was in extreme old age, and when, to use his own lan- 
guage— 

" Of the male members of the family, like Job's messenger, I am the 
only one left to make this note of events. These seven children," said 
he, referring to the offspring of Martin Hardin, of Fauquier, "Virginians 
by birth, all removed to Kentucky — the last of these, Martin, in 1787 — and 
all but Rosannah settled in the same neighborhood. John Hardin settled on 
Pleasant Run, a branch of Beech Fork, in April, 1786, then nearly east of 
what is now Springfield. From his residence a line west will take us to 
Springfield, about three miles. From his residence in a line inclining to 
south-west, about half a mile, Martin Hardin settled ; same course, about 
three miles further, Lydia Wickliffe settled ; same course, four miles further, 
Mark Hardin settled. These families settled on their own land — never re- 
moved or sold their dwellings, but left them to their heirs. Not one of them 
ever lost an acre of their land. 

"This line often miles, reaching diagonally between Springfield and 
Lebanon, was occupied by the same Hardin family for more than sixty years. 
Martin Hardin, the youngest of them, died some twenty years since, in the 
ninety-second year of his age. 

" When I last visited him, and we had talked over many of my boyhood 
and his manhood experiences in life, he said to me : ' Mark, I am now in the 
ninety-second year of my age. I suppose I am the oldest living man of the 
tribe, and I never knew a Hardin that was a liar. 



EMIGRATION TO KENTUCKY. 9 

" ' I never knew a Hardin that was a thief, I never knew a Hardin that 
was a coward, and your father was the noblest of them all.' The tears then 
ran down his cheeks as they had done for the fifty previous years whenever 
he spoke of his brother John after he was killed by the Indians in 1792. 

"An entire family there holding their possessions and rearing families 
will, of necessity, make an impression in the surrounding community. 
* * * * * * * 

" Of the younger brood I can say, whether of the name of Hardin or of 
any other name, I know that they are men — feel that they are men amongst 
the wisest and amongst the best. 

" It will suit here to state that a few years since my granddaughter, Mrs. 
Bernoudy, in St. Louis, met with Bishop Spaulding, who was raised near 
Lebanon, Ky., and hearing that she was of this family, remarked that the 
Hardins were ' a strong-minded family, but obstinate.' 

" Just here let me ask the question, if, in the providence of God, I have 
been given a strong mind to discern the truth, and integrity of purpose to 
maintain the right, may I not proudly wear the epithet of obstinacy ? Bunyan 
would call it ' valiant for the truth.' Thus viewed, we accept the soft impeach- 
ment as bringing with it no reproach. And, before I leave this branch of 
the subject, let me say to all of our lineage, whether a Hardin, a Wickliffe, a 
Helm, a McHenry, a Harwood, a Cofer, or any other name, remember what 
your old uncle, Martin Hardin, has said of them ; and remember, also, that 
had it not been for the massacre of St. Bartholomew, we, the Hardin family, 
might now have been Frenchmen instead of Americans. 

" In the year 1786, then a boy of four years of age, I was landed in the 
woods near a spring, some three miles east of where Springfield was after- 
ward built. It was then the District of Kentucky, part of Virginia. Since 
then the Constitution of the United States was adopted, and has since been 
accounted of no binding force. Since then the constitution of the Presby- 
terian church has been adopted and violated. I had in early manhood sworn 
to support the one, and in mature middle age vowed allegiance to the other. 
I have, in good faith, endeavored to fulfill my obligations to each of them 
as God has given judgment and strength to do so. And now, in my eighty- 
eighth year, to each one of you separately, and to all of us collectively, 
remember that each of us owes it to ourselves and to each other to maintain 
the character that has been transmitted to us. When there is a question of 
right, let us be obstinate in maintaining that right, and let us always be very 
obstinate in upholding the truth and prove our lineage true." 



IO BEN HARDIN. 



CHAPTER II. 



BIRTH AND EARLY LIFE 



THE parents of Mr. Hardin were Benjamin, Sr. , and Sarah Har- 
din. They were cousins and both natives of Virginia. The father 
of this Benjamin bore the same Christian name, and was of Huguenot 
descent. Mr. Hardin's father was a plain, quiet, sensible, honest 
man, not a little deferential to his wife. He was a typical backwoods- 
man, brave and hardy, with a strong inclination for Indian fighting — 
one of the ordinary employments of his day. After bis marriage to 
Sarah Hardin (which occurred in Virginia), they removed northward 
and located, as it proved, within the limits of Pennsylvania, which 
was perhaps inadvertent. Here his children were born. In March, 
1788, he removed with all his family (save a daughter who had mar- 
ried) to Kentucky, stopping in what was then Nelson, but in that 
part of which Washington county was subsequently created. His 
farm, where he settled on his arrival, where he lived (the cultivation 
of which was his lifelong pursuit), where he died, and where his 
ashes rest, was two miles from Springfield, adjacent to the public road 
from that place to Lebanon. 

Sarah Hardin, the wife of Benjamin Hardin, Sr. , was born in Fau- 
quier county, Va., and there dwelt until she attained young woman- 
hood. The following reference to her early life is from the pen of 
another: 

" In childhood she listened with thrilling heart to the stories of the 
Huguenots as recounted by her aged grandfather, Martin Hardin, who, a 
mere youth at the time, fled from France within a few days allowed for 
escape by the revocation of the edict of Nantes. In old age, on the borders 
of ninety, with head erect and clear blue eyes brightening and glowing, she 
told the story to her grandchildren, who asked no greater privilege than to 
stand by her knee and listen to the reminiscences of her youth — to stories 
of those revolutionary times that developed strong-hearted women as well 
as brave men; stories she had to tell of the war with the Indians; of Brad- 
dock's defeat ; of how she stood with her father on the lawn in front of his 
house in Virginia watching the messenger of evil tidings go by reeling with 
fatigue and haste as he urged on his nearly-exhausted horse, to her father's 
call drearily responding, without slacking his pace, ' The army is defeated 



MR. HARDIN S MOTHER. II 

and Braddock is killed,' and of the dread that settled upon the community 
as the news went through. Proudly she would tell of the War of Inde- 
pendence ; that all of her family were true ; ' there was not one Tory among 
them all.' 

"After removal to Kentucky one of the first objects to which Mrs. Hardin 
devoted herself was to supply, as far as possible, the comforts of life left 
behind. To this end she planted seeds and raised fruit trees — a matter gen- 
erally neglected by the adventurous but improvident population of the new- 
State. For awhile she shared her orchard products with her neighbors, ex- 
horting them, however, to plant seeds and raise orchards of their own. But 
these admonitions were long unheeded. 'Plant for yourselves this year,' 
she would say, ' for at the end of three years if you have not fruit trees you 
must do without, for we will not give to you after that.' The third year 
came and the improvident ones came as usual, asking their portion of the 
fruit, although they had planted no orchards. Mr. Hardin would have 
yielded, but his wife said ' no ; what we have said we will abide by.' 

"Too conscious of many neglected warnings to remonstrate against this 
just decision they departed ; but young Ben, with the ready sympathy a boy 
feels in the matter of getting fruit, hied away unnoticed to help them get the 
forbidden fruit. When he reached it, what was his surprise to find his ever 
kind father ahead of him, and he chuckled to himself as, hiding, he heard his 
father say : ' Now, you must plant the seed this year, for Sarah is a woman 
of her word, and will do what she says.' Well they knew that Sarah would 
do what she said. They reverenced and depended on her strong nature. 
In sickness and sorrow she was their best friend; but when she stood before 
them, tall, erect, proud of her courage, with purity and truth written on every 
line of her fair face, her clear blue eye flashing so brightly with indignation 
at wrong-doing, they feared to do evil, for she would look with no degree of 
allowance upon aught that was not honest and true. 

" They resorted to her for advice in sickness until there came to the 
neighborhood a young physician, who, on acquaintance, she found was qual- 
ified to administer the healing art. Then when the neighbors came to her 
for the unremunerated advice they were in the habit of receiving she told 
them no ; they had a doctor now — they must go to him, and pay him, too, 
or he would not be able to remain among them."* 

Mr. Hardin, though more yielding, was equally kind with his wife. 
He erected a school-house upon his place and himself taught a charity 
school during those portions of the year when the children of the 
poor were released from labor. 

The Hardin emigrants were clannish after coming to Kentucky, 
and much together. Sarah Hardin all her life was regarded by them 
as the strongest-minded of the family, and was deferred to as such. 

*Miss Lucinda B. Helm, in Lebanon Times. 



12 BEN HARDIN. 

She was of great personal beauty and superior intellect. Her com- 
plexion was very fair; her hair bright auburn; eyes clear and blue; in 
person, tall and commanding. She had the nerve and courage of a 
Caesar. Moving to Kentucky when it was molested by Indians and 
abounding in game, she learned to use the rifle, and became a superior 
marksman ; she killed squirrels from the tops of the tallest trees. In 
old age she taught her grandchildren gunning. She was a great 
reader, reading daily until within a few days of her death. She became 
an excellent historical scholar. Her conversational powers were unus- 
ually fine. She had enjoyed the best of Virginia society in young 
womanhood, and at that period associations more refined and intelli- 
gent were not found this side the Atlantic. "I have heard her say," 
writes a granddaughter, "that she was well acquainted with General 
Washington — had frequently met him in the social circle, and was 
often his partner at the whist table."* 

On the death of her husband (about 1820) she took up her resi- 
dence with her son Ben, with whom she lived until her death in 1832, 
in her eighty-eighth year. 

The theory asserted by Napoleon and others that it is the mother, 
rather than the father, that imparts greatness to the child has here 
another corroboration. It is fancied that between Mrs. Hardin and 
the imperious spirit of Lady Macbeth a resemblance may be traced. 
Of the one as well as the other it seems appropriate to say : 

' ' Bring forth men children only ! 
For thy undaunted metal should compose naught but males." 

Mr. Hardin had four sisters, of whom two married husbands named 
Tobin, another married Andrew Barnett, and the fourth (Rosa) mar- 
ried James McElroy. His brother Martin lived to middle age in 
Kentucky, in pursuit of agriculture. At the period when Texas was 
engaged in her unequal struggle with Mexico for independence, many 
chivalrous souls rushed to the aid of the republic of the Lone Star. 
Among these were Houston, Milam, Bowie, Crocket, etc. Martin 
Hardin also went thither, and did important service at the battle of 
San Jacinto. Afterward, when Texas was free and at peace, he pro- 
cured title to the land where the battle was fought, and there spent 
his last days. Warren, the youngest of the family, was a farmer of 
Meade county, and survived the late civil war. He was noted for 
integrity and courage. He had fine natural endowments, and if he 
had had requisite culture, and chosen intellectual pursuits, he would 
have made his mark. 

*Mrs. Kate Riley. 



BIRTH AND YOUTHFUL SPRIGHTLINESS. 



13 



Benjamin Hardin (or Ben Hardin, as he was always called), so 
christened for his father, and third in descent of the same Christian 
name, was born at George's creek settlement, on the Monongahela 
river, Westmoreland county, Pa., February 29, 1784. He was the 
sixth of the seven children of his parents. He early gave indication 
of decided vigor of body and mind. 

Not unnaturally, he was a favorite in his immediate family, and his 
most commonplace performances were deemed worthy of note. When 
the emigrant boat that bore the Hardin family down the Mononga- 
hela, in March, 1788, started on its voyage to Kentucky, a married 
sister, who remained behind, remarked afterward that the last sight 
she caught of little Ben, then four years of age, he was sitting on a 
barrel beating lustily on the head of it, unconscious and uncaring 
whither he went or what the future had in store for him. 




lost in the Wilderness. 



On one occasion a young gentleman of a heroic turn of mind 
proposed to write Mr. Hardin's biography, and asked for the incidents 
of his early life. Mr. Hardin thereupon related an adventure of his 
childhood for the benefit of his would be biographer. The latter, 
however, expressing the opinion that he could not make use of such 
a trivial circumstance, further communication was declined. The 
rejected adventure was this : When about seven years of age (after 
removal to Kentucky), he was sent by his mother from his home in 



14 



BEN HARDIN. 



the wilderness on an errand to the house of one of the nearest neigh- 
bors, some few miles distant. Road there was none — merely a path, 
and that dim from infrequent use, yet distinct enough when closely 
observed. 

Having accomplished his mission, on his return, by inattention, he 
missed his way. He soon found himself in the trackless woods with 
no conception of the direction of home. In the midst of his perplexity 
he heard the familiar bell worn by the milch cow that led his father's 
cattle on the range. Reasoning to himself that by nightfall that cow 
would return home, or, if she failed, would be sent for, he made his 
way to her and kept her in sight until she guided him home. 

In that period and locality the schoolmaster was abroad but seldom. 
Ichabod Radley taught at Hardin's settlement, in Nelson county, not 
far from 1790. Mr. Hardin was one of his pupils and so were Robert 
and Charles A. Wickliffe and Samuel Haycraft. He also, about the 
same period, attended a school taught on Cherry Run, in Washington 
county, by an educated Irishman named Knott — the grandfather of 
the present governor of the State. One of his schoolmates at that 
school, the late Rev. Stephen Ray, often spoke of Hardin's slovenliness 
and neglect of his person in school days, a characteristic never over- 
come. At one time he attended the school of Dr. James Priestly, at 
Bardstown. Dr. Priestly was the brother of the distinguished Dr. 
Joseph Priestly, of England, and enjoyed wide reputation for talents. 
He afterward taught at Frankfort, and from thence, in 1803, removed 
to Tennessee, where he became prominently identified with the edu- 
cational interests of the State, and there he spent the close of life. 

Mr. Hardin's brother-in-law, Andrew Barnett, resided in Green 
county. Barnett had been a soldier in the Revolutionary war, and was 
a man of considerable estate. He was childless, and this, perhaps, 
influenced his partiality for the youthful Benjamin. At any rate, the 
latter spent a considerable part of his leisure in youth with his kins- 
man, and there had an experience somewhat rare for those days. 
Barnett was a pioneer in the sport of horse-racing. He kept a stable 
of fast horses and ran them when occasion offered. Hardin accom- 
panied him and assisted in this business, for which he developed a 
keen taste. He at the same time learned, as a sort of concomitant, 
the art and mystery of ' ' old sledge. " So expert in this did he become 
that his brother-in-law freely staked his money on his playing. Mr. 
Hardin bet but little himself, although exceedingly skillful and suc- 
cessful. In after life he claimed credit for resisting a temptation so 



A PUPIL OF BARRY. 1 5 

alluring. In September, 1839, when he rode on horseback, from his 
home at Bardstown to Louisville, to witness the celebrated race 
between Grey Eagle and Waggoner, few realized how much the pas- 
sion of his youth was aroused, when, on that occasion, he declined 
an invitation of Charles M. Thruston to the grand stand, and was 
criticised for it. It was little imagined how much he felt at home 
among the jockeys, trainers, and groundlings, with whom he preferred 
to consort. 

"Young Ben stood more in fear of his mother than of his indulgent 
father," says his granddaughter,* " for in those rude times it took a stronger 
hand than in these days to guide and mold a robust, strong-minded boy, 
fuller even than usual of that life and energy which in boyhood are apt to 
run riot. Quick-witted and daring, he was hard to keep at school, and to 
hold back from frolic. Evading his indulgent father he was found one day 
in a billiard-room, watching with interest the game in which he was too 
young to join. It was Felix Grundy, who, coming in, saw the bright-eyed 
boy, intently enjoying what might lure him in time. Recognizing him, he 
exclaimed : ' What are you doing here, Ben ? ' and persuaded him to go with 
him and be signed for a year's tuition to an accomplished Irishman, by the 
name of Barry, who he foresaw would be able to attract and interest the 
restless mind that revolted from the tramping pedagoguery of the half-taught 
teacher of the neighborhood. He then went to inform the parents what he 
had done. The father was inclined to resent this unexpected interference 
with his family affairs ; but the mother, glad that so suitable a teacher had 
been found for her favorite son, thanked Mr. Grundy, and said he should 
be kept where he had put him." 

Daniel Barry was an Irish refugee who had fled from his country 
for participating in efforts to throw off the British yoke. He was 
versed in the languages, an accomplished scholar, and, withal, a polished 
gentleman. The commission of a homicide, after Hardin became his 
pupil, although justifiable, compelled him to abandon Bardstown. 
He was indicted in the district court but was granted, by the Legisla- 
ture, a change of venue — November 26, 1801 — to Danville "on 
account," said the act, " of the unusual prejudice and party spirit pre- 
vailing at Bardstown." He went to Hartford on his acquittal and 
again engaged in teaching. Hardin followed him thither and assisted 
in teaching the English branches, and in return was taught Greek and 
Latin. On the organization of the Circuit Court, in 1802. Barry 
received from Judge Christopher Greenup the appointment of clerk 
for Ohio county. 

* Miss Lucinda B. Helm. 



l6 BEN HARDIN. 

His neat and clerkly records are an enduring testimony of his fit- 
ness for his office. He built himself a dwelling at Hartford, which is 
still in fair preservation. Originally built of logs, these have been 
covered with boards. His love for republican institutions, and his 
classical tastes as well, are illustrated by the inscription on the wooden 
lintel over the main entrance: " Ubi libcrtas, ibi patt-ia."* 

Barry resigned his clerkship in about four years. Removing to 
Hopkinsville, he taught school there. The writer of a sketch of the 
distinguished Edward Rumsey, a pupil after his removal, styles Barry 
"one of the famous classicists of Kentucky." Eighty years have left 
little else to record of this cultured and liberty-loving Irishman. 

Mr. Grundy proved correct in his judgment. Mr. Barry's teach- 
ing opened a new world to the eager young mind, into which it rushed 
with avidity. He became studious and acquired that fondness for 
books that, in after years — in the most active years of his life — was 
ever one of his most marked characteristics. The active boy, who had 
formerly entered with such zest into sports, now became so intense a 
student that his parents began to fear for his health, and for the effect 
of night study upon his eyes. 

There were few more faithful and diligent students. His percept- 
ive powers were excellent, and his memory unusually retentive. He 
availed himself of the educational facilities within his reach with marked 
profit and success. " He became," observes one qualified to judge, 
"well taught in the structure and elements of our own language." 
Study to him was not laborious. He not only grasped an idea readily, 
but had that intuitive faculty which enabled him instantly to trace its 
consequences and relations. He was a lover of books and often 
quoted from his reading. He was fond of repeating quotations from 
favorite authors and discussing them. For light literature he had no 
liking, but delighted in the ancient classics, and among moderns was 
fond of Burns. History, biography, geography, and works dealing in 
argumentative discussion, suited better the bent of his mind. Rollin 
was a favorite historian, and he was fond of Plutarch. ^Esop's Fables 
was another favorite which he re-read once a year. He esteemed 
Homer above all ancient authors, and his public speeches teem with 
allusions to the ' ' father of song. " As a rule, however, he attached less 
importance to the author than to the subject and mode of treatment. 

In his youth he delighted in outdoor amusements. He was expert 
in running, wrestling, and jumping. In these he excelled his com- 



"'This house is owned and occupied by the surviving family of the late Frank Griffin, Esq., a dis- 
tinguished and successful teacher of Hartford prior to the late war. 



YOUTHFUL SPORTS. 



*7 



rades, with whom he was always a favorite. It is one of the traditions 
of Hartford that, while a pupil of Barry, he stood on the hill near the 
jail and threw a stone to Rough creek, a distance of several hun- 
dred yards. It seemed miraculous to those who witnessed it. He 
thus explained this feat to a venerable citizen of Hartford over a half 
century ago. " I went to the creek, and along the shore I selected 
a number of thin, soft stones of the kind called 'soap stone.' These 
I cut in a circular shape, sharpened the edges, making one side con- 
cave. Selecting a spot of high ground, the distance they could be 
thrown seemed surprising to those who had not considered the philos- 
ophy of the subject. "* "The boy is the father of the man." The 
habit of bringing his best thought to the subject before him followed 
him through life, and this, perhaps, is about as nearly as genius can be 
defined. 

Fishing and hunting he loved to excess. He was a fine marks- 
man, and always kept himself supplied with hunting accouterments. 
These early tastes were never lost. When seventeen years old, he, 
on one occasion, embarked, with some traders, on a pirogue for a 
voyage down the Ohio and up Green river. He was in quest of good 
hunting-grounds, and was duly equipped with rifle, ammunition, etc. 
He quit the craft below the Long Falls, on Green river, and struck 
through the woods northwardly. In a few miles, he came to the 
house of one David Glenn, a well-known pioneer of that region, where 
he received a hospitable welcome. He spent several weeks hunting 
very successfully, game being abundant. He was afterward fond of 
referring to this experience. 

Mr. Hardin's youth can not be fully understood without consider- 
ing, to some extent, at least, the state of the country at that period. 
The first census (1790) showed seventy-three thousand population in 
Kentucky. The increase in the preceding five years, it may be safely 
assumed, had more than doubled the earlier population. The set- 
tlers in Jefferson county were more numerous than elsewhere. 

Other centers of population were on Licking, Kentucky, and Salt 
rivers, and their tributaries. Settlements in the Green river region 
were sparse. When, in 1788, Mr. Hardin's parents came to Ken- 
tucky, the inhabitants had but fairly begun to abandon the immediate 
vicinity and protection of forts and block-houses. Attacks by preda- 
tory bands of savages did not cease for many years afterward, yet in- 
crease of population and need of larger arable areas made it necessary 
to dare possible dangers. The vicinity of a spring of pure water was 

* Harrison D. Taylor, Esq, o 



18 BEN HARDIN. 

a favorite location for an "improvement," and, in all the details of 
life, the useful, rather than the ornamental, prevailed. A cabin of 
logs, one story high, sixteen to twenty feet square, covered with 
rough boards, with a stone chimney, or one of clay and sticks, and a 
puncheon floor (if any) was the average style of the dwelling. The 
number of rooms was increased as necessity demanded, but building 
materials and architecture were the same. Around the dwelling, 
the larger timber was deadened and the smaller cut down, and, with 
the underbrush, was burned. This clearing was enclosed, if at all, 
by a "worm" rail fence, or one of brush or poles. In a primitive 
way, the land was plowed and cultivated. Tobacco was planted 
for shipment, by flatboats, to New Orleans. Other products were 
such as necessity required : Indian corn, flax, cotton, and some veg- 
etables, the last for food ; cotton and flax for home manufacture into 
necessary clothing. Cattle and hogs subsisted on the "range." 
Game formed no inconsiderable part of the daily bill of fare. The 
males of the household improved and cultivated the land, hunted, 
fished, helped the neighbors, attended musters, or joined occasional 
expeditions against the Indians. The women and children remained 
at home, engaged in household affairs, spinning, weaving, sewing, 
and making the plain and simple wearing apparel of the family. As 
to the mode of dress, many interesting incidents have been preserved. 

The most common head-dress for men (the boys usually went 
uncovered) was a skull cap made of the furred skins of coon, fox, or 
beaver. Old John Moseley, a Green river pioneer, related that in 
his boyhood a man came to his father's wearing a bell-crowned hat — 
an article he had never seen before. He judged of the shape of the 
wearer's head by the outward formation of the hat, and he became 
not a little curious as to how he got it on and off. He scarcely took 
his eyes off the visitor, and was not a little surprised when the hat 
was removed to see the head shaped like those who wore skull caps.* 

Some of the settlers had a few slaves, and such had larger estab- 
lishments. Social lines, so far as they existed, were dimly defined. 
The degree of hospitality universally displayed was never surpassed. 
The people obtained their ideas from each other rather than from 
books. A good talker always found listeners, and good talkers 
abounded. One of the gifts of leadership among the pioneers was 
jjersuasive speech. 

Social pleasures were not lacking. Young people gathered for 
dancing. Log rollings, quiltings, and weddings were epochs of 

'•'• Letter from Colonel A. M. Stout, of Chicago. 



DEATH OF COLONEL JOHN HARDIN. I9 

enjoyment. Musters of the militia and annual elections were red- 
letter days. The entire able-bodied male population attended both. 
Frequent "shooting matches" determined the champion marksman. 
The itinerant priest or preacher held religious services in private 
dwellings in bad weather, and in good occupied the groves — " God's 
first temples." 

Now and then this primitive life was disturbed by the neighboring 
savages north of the Ohio river. Parties of Indians would stealthily 
approach the unsuspecting settlers of the wilderness. Horses would 
be stolen, families would be murdered, barbarously murdered, neither 
age nor sex being spared. Scalped and mutilated bodies and the 
ashes where the home once stood were often all that remained to tell 
their tragic story. The bloodthirsty savage had fled like the wind. 
Pursuit quickly followed, and it was rare that the mission of ven- 
geance failed. 

In the fall of 1786 Colonel John Hardin, formerly mentioned, and 
eminently a man for the times, led an expedition of volunteers against 
Indians, who had committed depredations in his neighborhood. The 
Indians were overtaken ; three were killed, but the rest escaped. The 
same year he was quartermaster in Colonel George Rogers Clarke's 
expedition to the Wabash. In 1789, among other depredations, a 
considerable party of Indians stole all of Colonel Hardin's horses, and 
escaped in safety across the Ohio. This year he was appointed county 
lieutenant, with the rank of colonel. This gave him command of the 
militia of the county. In a subsequent expedition he encountered a 
camp of thirty Shawanees on a branch of the Wabash. He defeated 
them, with a loss of two killed and nine wounded, and recovered some 
of the horses he had previously lost. Save that of St. Clair's, it is 
said he accompanied every expedition against the Indians after his 
removal to the State. In the spring of 1792 he was sent by General 
Wilkerson to the Indians of the North-west Territory with overtures 
of peace. Accompanied by an interpreter, he reached an Indian 
camp, a day's journey from where Fort Defiance was afterward built. 
He encamped with the Indians during the night. Next morning they 
savagely and basely shot him to death. Thus fell one of the most 
heroic men that ever bore the name of Hardin. He was a man of 
unassuming manners and great gentleness of deportment, yet of sin- 
gular firmness and inflexibility. For several years before his death he 
had been a member of the Methodist church. Hardin county, Ky., 
and a town, laid out on the spot where he was murdered in Ohio, were 



20 BEN HARDIN. 

named in his honor.* The courageous life and tragic death of this 
brave man were full of noble teaching to Kentuckians, and especially 
full of precious lessons to his kindred. 

A vivid picture of these early days is thus drawn by Felix Grundy 
(once a Bardstown lawyer) in a speech in the United States Senate: 

"I was too young to participate in these dangers and difficulties, but I 
can remember when death was in almost every bush, and every thicket 
concealed an ambuscade. If I am asked to trace my memory back and 
name the first indelible impression it received, it would be the sight of my 
eldest brother, bleeding and dying under the wounds inflicted by the toma- 
hawk and scalping knife. Another and another went in the same way. I 
have seen a widowed mother plundered of her whole property in a single 
night; from affluence and ease, reduced to poverty in a moment, and com- 
pelled to labor with her own hands to support and educate her last and 
favorite son — him who now addresses you. Sir, the ancient sufferings of the 
West were great. I know it. I need turn to no document to teach me what 
they were. They are written upon my memory — a part of them upon my 
heart. Those of us who are here are but the remnant — the wreck — of large 
families lost in effecting the early settlement of the West. As I look around 
I see the monuments of former suffering and woe. Ask my colleague what 
he remembers. He will tell you that while his father was in pursuit of one 
party of Indians, another band came and murdered two of his brothers. 
Inquire of yonder gentleman from Arkansas what became of his brother-in- 
law, Oldham. He will tell you that he went out to battle, but never 
returned. Ask that representative from Kentucky where is his uncle, the 
gallant Hardin. He will answer that he was intrepid enough to carry a flag 
of truce to the hostile savages ; they would not recognize the protection 
which the flag of peace threw around him, and he was slain. If I turn to 
my old classmate and friend, now a grave and potent senator, I am reminded 
of a mother's courage and intrepidity in the son, whom she rescued from 
savage hands when in the very grasp of death." 

The period of Mr. Hardin's boyhood was the heroic age in Ken- 
tucky history. Existing conditions produced a type of men surpassed 
by no other time or country. The progress of civilization has un- 
doubtedly lowered this exalted standard. An old Kentuckian, long 
expatriated, yet proud of the early history of the Commonwealth, 
thus writes the author : 

"That there has been a marked deterioration in the men of Kentucky 
within the last half century seems to me to be a fact too patent for contro- 
versy. How is it to be explained? I shall not attempt the task, as nothing 
better than a plausible theory can be offered. 

* Collins' History, Vol. II., page 316. 



EFFECT OF WAR AND AGRICULTURE. 21 

"More than fifty years ago, in conversation with an old Virginia lawyer, 
himself a man of marked ability and originality of thought, he remarked to 
me that as soon as the Virginians in Kentucky quit fighting Indians and 
betook themselves to stock-raising, the race began to degenerate. This pro- 
cess he considered as then going on, and predicted the time as not far dis- 
tant when they would be sunk to the level of stock-breeders everywhere. 
He was an extravagant talker, and his language made little impression on 
me at that time. I am now inclined to think more favorably of his views, 
and that there is some hidden incompatibility between stock raising and the 
higher flights of the human mind. Solomon seems to have had a perception 
of the same fact, when he asked: 'What can a man know whose task is of 
bullocks?'"* 

That one's physical surroundings affect character was an opinion of 
Victor Hugo : 

" The configuration of the soil decides many a man's actions. The earth 
is more his accomplice than we believe. The education of lights and 
shadows is very different. The mountain is a citadel ; the forest an ambus- 
cade. The one inspires audacity, the other teaches craft. In the Alps of 
Switzerland, rather than the dikes of Holland, would one search for a 
hero." 

Without contrasting them or measuring them by a common stand- 
ard, it is conceded that the type of the pioneer differs from his 
descendant of the third and fourth and subsequent generations. The 
latter with less daring is more intelligent, with less vigor lives longer, 
with less fortitude is more patient, with less activity accomplishes 
more. To the pioneer belongs the warrior's laurel — to his descendant 
the moral and intellectual achievements of peace. 

" Peace hath her victories no less renowned than war." 

* Letter from Preston Hay, Esq., of Jackson, Miss. 



22 BEN HARDIN. 



CHAPTER III 



A LAW STUDENT. 




L N entering his twentieth year, young Hardin was fairly educated. 
He was not only well grounded in the English branches, but had 
made considerable progress in Latin and Greek. Besides, he had 
studied much of the more solid literature of the last century. His 
early promise had been followed by a development of decided mental 
vigor and strong purpose. It was but natural that he should seek an 
arena for the abilities of which he was conscious. Already the ambi- 
tious talent of the West — that formerly sought employment and 
renown in arms and adventure — had turned to statesmanship and the 
law. The legal profession was especially rich in opportunities by 
reason of the great litigation that deluged the country. 

His kinsmen, Robert Wickliffe, of Lexington, and Martin D. Har- 
din, then of Richmond, had studied law with the well-known George 
Nicholas, and, though yet young, had already become prominent in 
the profession. A circumstance like this was not without influence 
on young Hardin. From Martin D. Hardin he no doubt received 
advice and encouragement as to his future. So it was, whatever the 
cause, that in April, 1804. he entered the law office of the latter at 
Richmond, as a student. * Of his experience while there little is 
known. That town, first settled in 1785, was then inconsiderable in 
population and primitive in manners. It was chiefly important as the 
seat of justice for the county of Madison— an honor rescued surrep- 
titiously from a rival town — Milford. The modern Richmond has for- 
gotten its rival in the enjoyment of an enviable prosperity — a prosper- 
ity little anticipated by those who founded the village on the Town 
Fork of Dreaming creek. But Madison county was then, as it has 
always been, the fairest among her sisters. Fertile as a garden, 
abounding in wealth, rich in tradition, distinguished as the home of 
talent and p;enius, noted for its brave men and beautiful women, it 
has ever stood for the best type of all that has given fame to Ken- 
tucky. In the year 1800, of the forty-seven counties in the State, 
Madison ranked fourth. 

* Mr. Hardin's Owsley speech. 



THE ANCIENT LAW LIBRARY. 23 

It was amid such surroundings that Martin D. Hardin began his 
short but brilliant career. He was the eldest son of Colonel John 
Hardin, was born in Pennsylvania in 1780, and in earl)' boyhood emi- 
grated with his parents to Kentucky, where he grew to manhood. 
He was admitted to the bar when twenty years of age. He began 
public life as a member of the State Legislature in 1805, and rapidly 
increased his reputation for talents. He was not only a scholarly 
lawyer, but of exalted moral worth.* The influence of so skillful 
and excellent a teacher upon so receptive a student, for good, can not 
be readily overestimated. 

At that period in the history of the profession in Kentucky its 
leaders were usually not without one or more students in their offices. 
The law student not only enjoyed the use of his preceptor's library, 
but had the benefit of counsel and instruction. The course of instruc- 
tion consisted of oral examinations, explanations of legal principles, 
and directions in the forms of pleading and conveyancing. Profes- 
sional teachers in universities and law schools have since supplanted, 
in a large degree, the old mode of teaching the law in the West. It 
is, however, doubted if any seat of learning ever graduated from its 
halls a larger average of well-equipped lawyers than were those that 
took their course in the office and under the instruction of the justly- 
celebrated George Nicholas, of Lexington. 

There were no public law libraries at that day in Kentucky. Legal 
publications in the United States were few and of little importance. 
Story was yet an experiment as a young lawyer, and Kent did not com- 
mence his " Commentaries " until nearly twenty years later. Ameri- 
can authors were scarce, and, for the most part, they contented them- 
selves with annotating reprints of English works. It is doubtful it 
the Year books of England or the works of Glanvil, Bracton, Britton, 
or Fleta, or even the less ancient treatises of Stamford, Cromton, or 
Lambard and Dalton were to be found in any library in Kentucky in 
1805. As the student was being inducted into the mysteries of the 
legal science, and by way of a first degree had his spirit broken on the 
wheel, as it were, or, in other words, was set at "Coke upon Littleton," 
it may be doubted if he regretted anything more ancient. The follow- 
ing books were usually found in the libraries of the best equipped 
lawyers: Tucker's Blackstone, Adams or Tillinghast on Ejectment, 
Tidd's Practice, Espinasse's Nisi Prius, Hale's Pleas of the Crown, 
Foster's Crown Law, Gilbert's Evidence, Bacon's Abridgment, Fon- 
blanque's Equity, and Noy's Maxims. To these were often added a 

* Collins' History, Vol. II. 



24 BEN HARDIN. 

miscellaneous collection of English, Irish, and Scotch reports, the 
eight or ten volumes of Virginia reports, the four volumes of Dallas, 
and the case law of Kentucky then embraced in Hughes and Sneed's 
respective volumes. The Virginia Body of Laws, and Bradford's Col- 
lection of Session Acts comprised the statute law. The law library 
when thus well equipped was the exception rather than the rule, 
and through such a mass of incongruous learning the student was 
expected to struggle for two or three years before he was considered 
ready to practice. 

There is authority for saying that at that period the law, especially 
in Kentucky, was a difficult science. The General Assembly in 1801 
expressed the opinion that the criminal laws were so complex that it 
was impossible for the people to read and understand them. To rem- 
edy this evil that body appointed two revisors to fully "delineate " the 
criminal laws, thus "to inform the public mind and facilitate the admin- 
istration of justice." 

The gentlemen to whom this task was entrusted were Harry Toul- 
min and James Blair, both then residents of Frankfort. Toulmin was 
a Baptist preacher, who had been prominent in public affairs from the 
organization of the State. He had published a history of Kentucky 
in 1792, and when James Garrard was elected governor he appointed 
Toulmin his secretary of State. The governor (differing in this respect 
from some of his successors) was also a Baptist minister. In 1805 
Toulmin was appointed by President Jefferson to a Federal judgeship 
in Mississippi territory. In 1807 he published a digest of the laws of 
that territory. "The last public record of him," says Mr. Lynch, 
in "Bench and Bar of Mississippi," "is a correspondence, held in 
181 3, between him and Governor David Holmes, in regard to organ- 
izing and equipping the territorial troops in anticipation of the 
approaching Creek war, after which he passed from the stage of pub- 
lic affairs and carried with him into his retirement the meed of a life 
adorned with a conscious and acknowledged benefaction. " His death 
occurred in 181 5. 

The forefathers of James Blair were the founders of Princeton col- 
lege, where he was educated. Coming to the West, he became the 
first attorney-general of Kentucky. He was afterward appointed dis- 
trict attorney, for which favor he was indebted to his wife's kinsman, 
John Breckinridge, attorney-general under Mr. Jefferson. Mr. Blair 
was a great student — the loss of a leg precluding him from participat- 
ing in the active life of the pioneers. He was the father of Francis 



THE INTRICACIES OF THE LAW. 2$ 

P. Blair, who went from Kentucky to Washington during Jackson's 
administration and won distinction by the spirited manner in which he 
conducted the Globe newspaper at that period.* 

The revisors, under authority of the Legislature, published in 
1804-5, in three volumes, "A Review of the Criminal Law of the 
Commonwealth of Kentucky." 

To render this work more generally useful, the legislative act had 
provided that no abbreviations nor any Latin or French phrases should 
be used. The authors virtuously eschewed the proscribed abbrevia- 
tions and phrases, but admitted difficulty in substituting correspond- 
ing terms for the "cant" names of some of the writs. This was 
among the earliest attempts at codification in the United States. It 
might be inferred from this solicitude for the public understanding of 
the criminal law, that, in regard to civil matters, the Legislature would 
frame its statutes in the most perspicuous and unmistakable language. 
But the very reverse of this was true. Of all the involved and com- 
plicated systems, whereby an honest and confiding people were robbed 
of homes and fortunes, the Kentucky land laws may be set down as 
most striking and peculiar. It was a system that expatriated Boone 
and beggared Kenton. "The claims to land in this State," truly 
observed Chancellor Bibb in 1815, " are found in statutes which leave 
very much to be supplied by the discretion of the judges." As the 
decisions of the court of last resort were but meagerly published, 
and on this account either unknown or imperfectly understood, the 
inferior courts were driven to formulate rules to eke out the insufficient 
statutes. It resulted that they varied with every change of tribunal. 
Not unnaturally, this state of affairs caused popular discontent. In 
his dedication to the first volume of his reports, Bibb thus reproves 
the murmuring people: " But you complain of the multiplicity and 
intricacies of the laws already published. Do you want a code of 
laws that every man can carry about him and understand without 
study?" If the want existed it was one not to be supplied. The 
difficulty was to understand the law even by study. The assurance 
that a multiplicity of laws is inseparably connected with political and 
civil liberty did not, to the plain citizen, afford justification for their 
hopeless confusion. The student was little enlightened by textbooks 
or by adjudications outside of the State. To learn the art and mystery 
of "entries, notoriety, diligence, pre-emptions, settlements and set- 
tlers, and certificates," the student had not only to read the statutes. 
and their exposition by the Appellate Court, but was compelled to 

* Letter of Mrs. Admiral Lee. 



26 BEN HARDIN. 

attend the sittings of the inferior courts, observe the trials therein, and 
witness the working of the system. The student who sought to be 
a "land" lawyer realized the quaint expression of Lord Coke: "The 
artificial reason and judgment of the law, which law is an art which 
requires long study and experience before a man can attain to the cog- 
nizance of it." It was remarked by a good lawyer at that day that 
"students avoided the doctrine relating to land titles in the State as a 
tedious drudgery." 

It is, however, to be recorded of Mr. Hardin that he gave this 
branch of the science his especial and successful attention. Of his 
modes of study, or as to the history of his student life, very few or no 
facts are preserved. Cotemporary students usually followed the sug- 
gestion of Blackstone, and made notes of reading, and regaled them- 
selves therewith in the intervals of study. The more ambitious 
digested these notes in books — a laborious but helpful exercise.* But 
with any and all devices to facilitate his progress, the student found no 
"royal road" through his difficulties. 

A Bardstown colleague of Mr. Hardin thus spoke of his own early 
tribulations: "I read and read for sixteen hours out of the four and 
twenty ; but the more I read the more I became aware of my 
deficiencies. It seemed as if the wilderness of knowledge expanded 
and grew more perplexing as I advanced. Every height gained only 
•revealed a wider region to be traversed, and nearly filled me with 
despair. I grew moody, silent, and unsocial, but studied on doggedly 
and incessantly."! 

Laborious though his life undoubtedly was at this period, yet it 
was not devoid of pleasing incidents. "At the April Circuit Court in 
Madison county, in 1804," says Mr. Hardin, "I became acquainted 
with William T. Barry, Samuel Woodson, George M. Bibb, John 
Pope, and William Owsley. I was humble and obscure. These gen- 
tlemen paid me some attention. I was gratified with their notice of 
me. Their little acts of kindness won my youthful heart when all 
alive to first impressions." I 

Of these early friends Hardin was justly proud. Afterward they 
all had successful careers, and wrote their names high on the scroll of 
fame. Already they were in full practice at the bar. Pope, popu- 
larly known as one-armed John Pope, afterward as Governor Pope, 
was thirty-four years of age, and had represented Shelby county in the 

* Ben Chapeze, a Bardstown lawyer, a sketch of whom will be found in a subsequent chapter, left a 
ponderous manuscript volume of such notes. 
■(■Governor W. P. Duvall. 
I Mr. Hardin's Owsley speech. 



FELIX GRUNDY S PUPIL. 2J 

Legislature. Bibb, then practicing at Lexington, was in his twenty- 
ninth year. Coming from Virginia in 1798, the interval of six years 
had sufficed to raise him to the front rank in the profession. Owsley 
was two years and Barry one year older than Hardin, and both were 
bright and ambitious. Little else is preserved of Woodson than that 
he afterward served in the State Legislature and in Congress. These 
all belonged to that flower of Virginia youth that gave such luster to 
the early history of Kentucky. It will be a pleasing duty, in future 
pages, to note their upward career, as it so happened that they were 
the colleagues or adversaries of Mr. Hardin in many a civic encounter. 

A profitable year was spent in the office of his cousin, Martin. 
April 1, 1805, he left Richmond and went to Bardstown, where he 
read law with Felix Grundy, who was already in the flower of his 
fame. The Bardstown of to-day has been shorn of the relative impor- 
tance it possessed in 1805, and long afterward. It was then the fifth 
town in population in the State. It was the seat of justice of Nelson, 
a prolific mother of counties, whose broad territory had only then 
begun to be parceled out. 

The town had been established in 1788 by the Legislature of Vir- 
ginia. It was christened Bairdstown after David Baird, one of the 
original owners of the one hundred acres of land on which it was 
first built. In its decadence its name underwent diminution, the 
orthography being changed to Bardstown. It was early known as a 
mart of trade, and as a social, educational, political, and legal center. 
In 1808 it became the seat of a Roman Catholic diocese. It was 
already one of the important towns of the West in 1805 when Mr. 
Hardin entered it as a law student. His preceptor was the leader of 
the bar in all that region. 

Born in Berkley county, Va., September 11, 1777, Felix Grundy 
was brought to Washington county in early boyhood. He had re- 
ceived his education at the Bardstown Academy, under the tuition 
of Dr. Priestly. He studied and came to the bar at his majority. 
In 1799 ne was a delegate from Washington county to the convention 
that framed the second constitution of the State. He also represented 
Washington in the Legislature of 1800, 1801, and 1802. In 1804, 
1805, and 1806 he was a member from Nelson, of which he had then 
become a resident. Mr. Grundy had already a large and valuable 
practice and a spreading fame. Mr. Hardin's early association with 
him was auspicious. The occult influence of such a circumstance in 
the make-up of character can never be measured or estimated. 



28 BEN HARDIN. 

At Bardstown — and, no doubt, at Richmond — Mr. Hardin enjoyed 
that advantage denied no law student in the West — the privileges and 
opportunities of a debating society. However such institutions may- 
have succeeded in other times and countries, it is thought that in the 
South and West they were not only indigenous, but in some respects 
different and more luxuriant than those elsewhere. " Orator fit " is 
the annunciation of an old rule. The dwellers of the South and West 
were the exceptions. There oratory came by nature. Within that 
territory some generations ago, at least, orators were born such. Not 
only from the school and college, but from the shop, store, and farm- 
house came young men, ready, able, and willing to make a speech at 
any time and on any topic. It mattered not that the subject was new 
and that the speaker was unfamiliar with it; that he had neither read 
nor thought about it, nor that there was really nothing to say. Notwith- 
standing these and other equally discouraging conditions the orator 
was always ready to proceed with his remarks. In such a community 
orator)' ranked among the absolute necessaries of life. Whether the 
progress that seems to be leaving the old-fashioned debating society 
behind is upward is, to say the least, a fit question, for debate. 

Can it be necessary to define these old-time institutions, or to 
describe their modes? They were voluntary associations, mostly com- 
prising young men, organized for the purpose of oral discussion, 
directly and ultimately for mental culture and the attainment of skill 
in elocution and oratory. The subjects for discussion were impar- 
tially chosen from any part of the field of human thought, and were 
indiscriminately legal, political, literary, or scientific. A presiding 
officer preserved decorum, and leaders on either side of the subject of 
debate chose those whose aid they desired to assist in the discussion. 
Then the war of words (if not the contest of thought) began, and was 
waged with such skill, ability, and zeal, that often the balances 
seemed at equipoise on some very one-sided questions. There was 
immense virtue in these societies. They taught one to think on 
his legs, and to clothe and express his thoughts in good and forcible 
language. The voice acquired volume and modulation, and diffi- 
culties of enunciation were overcome. Debate conquered "stage 
fright," the dreaded malady of young orators. The biographers of 
Henry Clay relate an interesting incident of his first address to a 
debating society. The young orator arose under a paralyzing embar- 
rassment. He addressed the president of the society as "Gentlemen 
of the Jury." This lapsus only multiplied the calamities of the situa- 



A SCHOOL OF ORATORY. 2 9 

tion. Blushing, hesitating, and stammering, he repeated: '" Gentle- 
men of the Jury." A well-bred audience patiently stood it all, until 
the reason of the young orator righted itself, whereupon he made a 
speech of such force and eloquence as to carry conviction at once to 
the hearts of his hearers. To the young law student, these debates 
afforded an intellectual diversion to the monotony of legal study not 
unlike the shadow of a great rock in a weary land. 

It is a proverb that the law is a jealous mistress. It inclines to 
clip the wings of youthful fancy. In the debating society, it was 
otherwise. Therein, the bounds of thought were profitably widened. 
Ralph Ringwood (records Irving) thus spoke of an old-time debating 
society in Bardstown : " Men of talents, engaged in other pursuits, 
joined it, and this diversified our subjects, and put me on various 
tracks of inquiry. Ladies, too, attended some of our discussions, 
and this gave them a polite tone, and had an influence on the man- 
ners of the debaters."* Through such experiences Mr. Hardin passed 
in his student life, and there, doubtless, he laid the foundation of the 
forcible oratory that distinguished his after career. 

The excellence of the Bardstown bar was also an incalculable 
advantage to the young law student. The recurrence of the terms of 
court was a " feast of reason." The skill with which trials were con- 
ducted in court, the learning that characterized forensic tilts, and the 
eloquence that marked appeals to the jury were so many living les- 
sons. As the medical man best learns surgery and the pathology of 
disease in the hospital, so, in the court-house, the law student gets 
his best knowledge. No incidents are preserved of this period of Mr. 
Hardin's life, but his solid lawyership, on coming to the bar, testified 
to the diligence and success of his preparation. If he had been fortu- 
nate in opportunities, he had unquestionably taken the flood at its 
tide. He not only entered upon his career fairly equipped in the 
technical learning of the law, with excellent natural qualifications, but 
also possessed of certain wise hints, accounted of little moment, yet, 
nevertheless, indispensable to be observed. These he had gathered 
from his preceptors chiefly. How well fitted his kinsman, Martin D. 
Hardin, was to start a young lawyer on the right road to honorable 
success, the following memorandum, furnished by him to a law stu- 
dent, will fitly attest : 

"There are a few principles for governing a man's actions in life that are 
worth more than ordinary fortunes, especially to professional men. I will 
give a few : 

* Crayon Papers, article on " Ralph Ringwood." 



30 BEN HARDIN. 

" First : What you have to do, do at the first time which it can be done. 

"This embraces many old proverbs, 'Take time by the forelock,' etc. 
It requires industry. It begets leisure. 

" Second: Do just one thing at a time. In other words, finish what you 
begin. By this rule everything will be done better and in less time. 

"Third: Never use your client's money, but inform him of its receipt 
by the first mail, and remit by the first opportunity. 

■ • A character for punctuality is thus acquired, a man is never ashamed or 
afraid to meet his client, and he is relieved from remorse which always should 
attend the using of another man's money and not replacing it when wanted, 
and I am sure that no man can habitually use his client's money and yet 
always have it ready when it ought to be paid, let his wealth and credit be 
what they may. 

' ' I have said nothing about strict moral integrity. This is indispensable. 
But I trust you stand not in need of any monitions on that head. I have 
attempted to make the above three rules the leading ones in my business. I 
never have departed from either but I have felt the effects of it. 

" You must not think that as you have got license you are a lawyer, and 
have nothing to do but get suits. Occasionally mixing in company, going 
to public places, and becoming acquainted with the people and with human 
nature are necessary. But habitual reading and attention (that is, remaining 
in your office) are indispensable. 

"If you are closely and perseveringly industrious you will succeed. If 
you are not, you will fail in your hopes." 



RIDING THE CIRCUIT. 3 1 



CHAPTER IV. 

PROFESSIONAL BEGINNINGS. 

HARDIN county was established by the State Legislature, in 1792. 
In 1793 Colonel Andrew Hynes founded a town on the south- 
ern slope of Muldraugh's Hill and Severns Valley creek, which he named 
in honor of his wife — Elizabeth. Here was located the seat of jus- 
tice of the new county. The town, however, proved of slow growth. 
It was overshadowed by its proximity to Bardstown — unquestionably 
the pioneer metropolis of that region. The third census credited the 
town of Elizabeth with only one hundred and eighty souls, in 18 10. 
Thither emigrated Mr. Hardin, in 1806, and opened a law office. 

In this location he no doubt sought to avoid, to some extent, the 
odds against him in competing with the powerful leaders of the 
Bardstown bar. He, however, did not wholly escape that competi- 
tion. Then, and for half a century afterward, the lawyers of Ken- 
tucky universally "rode the circuit." Riding the circuit needs no 
explanation to the members of the profession of a past generation, 
who still linger "on the stage," but in these changed times all readers 
may not fully comprehend it. The judge of a district, as he traveled 
from county to county, was accompanied by a retinue of attorneys, 
composed of members of various bars. They sat when the court 
sat and rose when the court rose. The usual mode of travel in that 
day was on horseback. Saddle-bags contained the wardrobe and 
such books as these itinerants carried with them. 

The arrival of this cavalcade on the Sabbath preceding the open- 
ing of court produced a sensation in the county towns. The 
"great" men, on such occasions, unbent themselves in familiar dis- 
course with each other, and each contributed his quota of anecdote, 
or incident, or learned homily, to the edification of attentive listeners 
of the laity. The principal hotel was headquarters, and Boniface 
was usually a worthy host of such distinguished company. What the 
hotel table lacked in delicacy and variety was supplied by hospitable 
attention, not to mention the hotel bar that made up in abundance 
and strength the shortcomings of the larder. Unfortunately, pota- 
tions were not always regulated with prudence, and the consequences 



32 BEN HARDIN. 

were oftentimes lamentable. Excesses were committed on the circuit 
from which their perpetrators were happily exempt under the imme- 
diate and benign influence of the home circle. 

The following incident occurring within the territory where Mr. 
Hardin practiced, to a couple of his colleagues, illustrates the perils 
of the old time circuiteer. The gentlemen referred to were attending 

the session of the court in the little town of L and were guests 

of the principal hotel. They had not only protracted their conviviality 
but on a particular evening had indulged so excessively as to require 
assistance in retiring. They were lodged in the same bed and their 
slumbers were deep and profound. Daylight streamed in at the open 
window next morning, when one of them awoke. In the moment of 
returning consciousness he glanced at the wall opposite the foot of 
his bed and there beheld a sight that froze his blood. He rubbed his 
eyes, fancying that it was an optical illusion that would fade away with 
a better view. But no — the more he looked the greater the horror 
grew. Enormous serpents of every conceivable hue, with glaring eyes 
and distended jaws and writhing and twisting bodies, covered the whole 
wall from floor to ceiling. They seemed to him to be in constant 
motion. " Get up here, J ! " he excitedly called to his compan- 
ion. "Get up — my God! this whole room is full of snakes." The 
sleeping man, half aroused, muttered that he must have the jim-jams 
and that he had better lie down and go to sleep. 

"Get up and look, get up and look, and you will see." Thus 

aroused, J gave one glance. More alarmed than his friend, he 

screamed: " I've got 'em, I've got 'em ! " 

So loud were their demonstrations of terror that the landlord 
hastened to their room. "I've got 'em," were the first words that he 
heard on opening the door. 

" Got what ? " inquired the astonished host. ' ' O, sir ! I've got the 
delirium tremens. I can just see snakes all over that wall — O ! I've 
got 'em." Happily the afflicted men (each of whom feared the worst 
as to his condition) were relieved by the landlord's explanation. The 
walls were indeed papered with the show bill of a traveling menagerie 
in which the artist had somewhat flattered the boa constrictor and his 
friends. 

The lawyers on the circuit not only tended to conviviality, but were 
addicted to cards. The knowledge of old sledge, twenty-deck poker, 
euchre, and whist proved not inconsistent with sound legal judgment 
and ready eloquence. Mr. Hardin was abstemious in drinking, and 






A FRIENDLY CONSPIRACY. 33 

played cards but little after getting into full practice. This amusement 
was then very common among all classes of the people of Kentucky 
— even the highest. Immense sums were sometimes bet, and wealthy 
men have been known to risk their whole fortune on the chance of the 
cards. 

Some of our readers may, perhaps, remember the anecdote that is 
told of Mr. Clay (for the truth of which, however, we do not vouch). 
It is said that on one occasion meeting a friend at the Springs, and 
inquiring the cause of his unusual glo^m, the latter told him that he 
had just lost to a noted gamester, not only his farm and negroes, but had 
given his notes for large sums besides, and was, in fact, a ruined man. ■ 
The statesman made no reply at the time, but took the first oppor- 
tunity to engage the winner, and being, as was well known, an adept 
in the science, soon stripped him of his ill-gotten gains ; the whole of 
which he immediately returned to the grateful owner. 

In truth, gaming at cards was the social vice of that day. John 
Rowan was an inveterate gamester. When Charles A. Wickliffe was 
in the early years of his professional career his passion for gaming 
caused serious concern to his friends. Judge John Pope Oldham and 
Governor W. P. Duvall, being among the latter, conceived a scheme 
to cure the young attorney of his folly. Their plan was this : It was 
known that at the approaching court in Bullitt county — then shortly 
to ensue — Mr. Wickliffe would collect several thousand dollars for 
Eastern merchants. As soon as he received this money Duvall and 
Oldham were to entice him into a game of cards, win it all, and then 
restore it on exacting the promise of reformation. To ensure success 
the friendly conspirators devised a system of signs whereby each could 
notify the other of the state of his own "hand " during the progress 
of the game. Court came on, the money was collected, and Duvall 
notified Wickliffe that he and the judge would call at his apartment for 
a game. They did so. To prevent interruption in the good work 
the door was secured. Thereupon they proceeded to teach Wickliffe 
a lesson that, sure enough, did him good. The game continued all 
night, and ended at last only when Duvall and Oldham had lost their 
last farthing of ready money. The judge, who smarted under his 
losses, insisted on disclosing to Wickliffe that they had no purpose of 
keeping his money had they won — in the hope that the latter would 
restore his winnings. Duvall, however, would not consent, taking 
ground that Wickliffe was fairly entitled to enjoy his triumph and its 
profits. But the joke was too good for a story-teller like Duvall to 

3 



34 



BEX HARDIN. 



keep, who felt entirely compensated for his losses in its relation. It 
ultimately reached YVickliffe's ears, and, after all, had the effect 
desired. ;; 

Mr. Hardin was not personally fond of Mr. Clay, yet he had great 
admiration of his abilities as a lawyer, politician, and, especially, as 
a card-player. He said he had often played cards with Mr. Clay, but 
always on his side — never against him. In early life he acquired a 
taste for card-playing. In his first journeys around the circuit he 
spent more time in this sport than in professional duties. Truth to 
say, the competition of older and abler lawyers prevented him from 
getting an encouraging share of practice at the outset ; while at the 
card-table he was quite able to hold trumps over the leaders of the 
bar. Chief-Justice George Robertson, in his Autobiography, confesses 
that he could not have survived his early years at the law if he had 
not added to his professional income the profits which rewarded his 
skill at the gaming table. Mr. Hardin realized steady gains from 
play, and in later life applauded himself for resigning a pursuit in 
which pleasure and profit were alluringly combined. 

He was fond of meeting the crowds resorting to the hotel, and 
gathering from them items of local news. His faculty for wit and 
humor made him attractive, and he had an abundant and attentive 
auditory when in a colloquial mood. So it was when a session of 
court was held at Elizabethtown. he had to encounter competitors 
from abroad, and he, in turn, following the custom of the time, joined 
the practitioners on the circuit. 

One of the most important incidents of his early career was his 
marriage, March 31, 1807, to Elizabeth Pendleton Barbour, daughter 
of Colonel Ambrose Barbour, of Washington county. Colonel Bar- 
bour was a wealthy farmer who had emigrated from Virginia some 
years before, and was connected by blood with the distinguished fam- 
ilv of that State bearirig his name. He was brother of Thomas Bar- 
bour, whose distinguished sons. Phillip P. and James, attained the 
highest civic honors. Phillip P.' Barbour was Speaker of the Lower 
House of Congress and Associate Justice of the Supreme Court, while 
James was Governor of Virginia. United States Senator, and Minister 
to the Court of St. James. The belle of all the country around was 
the beautiful daughter of Colonel Barbour, known to her intimate 
friends and admirers as " Betsy Barbour," the abbreviation common 
to the name Elizabeth in those days. Among the crowd of suitors 
who laid their hearts at her feet was young Ben Hardin, who, so she 

* Related to aufht r by H »n. 1 C Wii kliffe 



bray's case. 35 

once said, compared very advantageously with the rest. His ready wit 
rendered him entertaining, and. with his fair complexion, bright blue 
eyes, and hair of reddish tint, dressed handsomely, with lace ruffles 
on his shirt bosom, and at his wrist, falling over small, white hands, 
he was no uncommon suitor. 

Said his wife in after years: " He was very fastidious in his dress 
in those days, and continued so until some time after our marriage, 
when one day as he sat busily writing, the ruffle at his wrist dabbled in 
the ink and on his paper, so much to his annoyance that he impatiently 
tore it off. He would never in future wear ruffles, and gradually fell 
into indifference in regard to his dress." :; 

When he commenced the study of law at twenty, Betsy Barbour 
had plighted her faith to him, and in March. 1807, they were married. 
Mr. Hardin took his bride to his new home and set up housekeeping 
in the primitive way of the period. Whatever talents the young 
lawyer may possess, the beginning of his career is a strong trial to his 
patience and equanimity. The patronage of the public is capricious 
and somewhat like the wind "that bloweth where it listeth." That 
irresponsible entity is extremely fond of depreciating the talents of 
voting men generally, but of the bar particularly. The veriest igno- 
ramus would cheapen the abilities of Pitt were he suing for its favor. 
With some there is a tinge of criminality in being a young man. 

One day. in the year 180S, while Mr. Hardin was engaged in his 
office, the officers of the law were passing by, having in custody one 
Brav charged with having committed a murder in the "Level Woods" 
— a part of Hardin count}-, subsequently added to Larue. It is related 
that the homicide was committed in the following peculiar way: A 
party of young men were engaged in an all night debauch. One of 
the number had drunk spirits so excessively as to become insensibly 
drunk. An overburdened stomach finally yielded its contents. While 
this was going on, Bray, having some curiosity on the subject, took a 
candle to demonstrate by ignition whether the drunken man was dis- 
charging pure spirits. The outflowing stream caught fire and so 
burned the unfortunate inebriate that he died. For this the prisoner 
was arrested on the charge of murder He asked of the officers hav- 
ing him in charge permission to consult Mr. Hardin. 

During 'the consultation he inquired what fee would be charged, 
and the reply was three hundred dollars. The prisoner complained of 
this as excessive, saying that he could get a Bardstown lawyer for that 
sum. That remark had a decisive effect on Mr. Hardin's future ca reer. 

Miss T.ucinda B. Helm, in Lebanon Tit 



/ 



36 BEN HARDIN. 

He immediately went home and notified his wife to prepare to move 
to Bardstown. Within a week he was domiciled in the latter place. 
He had been retained in Bray's case, and the latter, after all, had the 
services of a Bardstown lawyer. * As Mr. Hardin came to Bardstown 
his old preceptor, Felix Grundy, was leaving for a fresh field of fame 
— the rising young State of Tennessee. But Rowan, Duvall, Charles 
WicklifTe, and others remained to contest the triumphs of the bar. Dr. 
Henry Chapeze, father of the subsequently-distinguished lawyer, 
Ben Chapeze, told Hardin that he would find success at Bardstown 
difficult on account of the legal talent already there. "But," said 
the doctor, "I have seen a little bull crowded from a haystack by 
larger cattle, who kept trying to get in so persistently that finally the 
older and stronger yielded him a place. So you will find it." The 
talented and popular William P. Duvall was county attorney in Nelson 
at that time — a post filled annually by the justices — and to which 
Duvall had been frequently re-elected. A short time before this office 
was to be filled Mr. Hardin visited the various justices and obtained 
the promise of each to vote for him. This they did somewhat unex- 
pectedly to Duvall. 

In his first important case at Bardstown, one May was his client, 
and a large body of land was involved. He was alone on his side of 
the case, while the opposite side had retained several of the most dis- 
tinguished attorneys at the bar. Hardin was diligent and laborious in 
preparation, and when the trial came on, he threw his whole soul into 
the contest. He scarcely ate or slept. He ransacked authorities, 
reviewed the evidence and record, and, in the adjournments of court, 
when not at work otherwise at the case, walked to and fro in wrapt 
revery, mentally reviewing, planning his argument, and conning over 
every detail of law and fact. To his wife's importunities to eat, sleep, 
and rest, he answered that if he won his case his fame was made, and 
he had resolved to win. Finally, the case was argued thoroughly 
and ably, but none surpassed Hardin. The verdict came, and his 
client was victor. It was a proud moment — the proudest of his life. 
It was pardonable for him to hasten from the court-room to bear the 
glad tidings to his anxious and expectant young wife, that she might 
share with him the luxury of success. He had, however, been antic- 
ipated. Father Baden, the warm-hearted French priest, and Barry, 
his old Irish preceptor, had witnessed the trial, and on its conclusion 
had hastened to Hardin's house, feeling that his wife alone could sym- 
pathize with their excess of joy. 

* Letter of Mrs. Kate Riley. 



AN EARLY TRIUMPH. 37 

When the stalwart young lawyer came, the enthusiastic little 
French priest embraced and kissed him (despite his protest), and the 
Irish teacher was scarcely less demonstrative. It ought not to be 
recorded how freely the wine flowed, or how the Irishman boasted that 
he was no less than the author and finisher of young Hardin, or how 
the French father had all the time predicted his certain, early, and 
magnificent success. Pleasurable as was this early triumph, the better 
part of it was the substantial results that followed. His fame went 
abroad, and an abundant practice came in. Neither dazzled nor 
puffed up by success, he remembered that it first came by diligence 
and study, and reasoned rightly that diligence and study would 
retain it. 

March 19, 18 10, he was appointed, by Judge Stephen Ormsby, 
Commonwealth's attorney for the district in place of Gabriel I. John- 
son, Esq. This office he held for several years. How far the 
efficient discharge of its duties may have developed certain traits of 
character in Mr. Hardin is an interesting question. Whether a certain 
austerity of manner, and a certain real or apparent uncharitableness 
in dealing with an adversary may not have been developed in the exer- 
cise of the prosecutor's duties can neither be confidently affirmed nor 
denied. The affirmative theory is not improbable. The position of 
prosecutor was certainly not without its advantages. It gave a man 
of bright parts a chance to show his ability. It threw him in compe- 
tition with the best talent at the bar. Mr. Hardin was one to profit 
by this opportunity. He laid the foundation of that fame as a prose- 
cutor that made him the terror of the criminal class of his day. Not 
only did he profit in the way of reputation, but his receipts from offi- 
cial fees amounted to fifteen hundred or two thousand dollars per 
annum. 



38 BEN HARDIN. 



CHAPTER V. 

OUTSET IN POLITICAL LIFE. 

IN his twenty-seventh year, Mr. Hardin took his first step in politi- 
cal life. At the August election, 1810, he was chosen representa- 
tive in the State Legislature, from Nelson county. Then, as later, a 
seat in the Legislature was deemed the proper beginning of an ambi- 
tious career — the stepping-stone to something better. It afforded 
especial advantages to a good debater. It also brought one in familiar 
contact with the best talent and highest social life of the State. It 
enabled a man of parts to form associations and friendships helpful to 
higher aspirations. It was an arena in which Mr. Hardin immediately 
became conspicuous. 

" During the first ten years of the present century," says a writer in Har- 
pa's Magazine, ' ' the society of the little capital of Kentucky was very 
brilliant and amusing. The Federal Capital had not yet come to be regarded 
as the only field for the display of great genius, and the State courts and the 
Legislature frequently enlisted as much talent as was drawn to the support of 
the National administration. During the fall and winter months all the 
great men of our State were assembled in Frankfort, to attend the sittings of 
the House of Representatives or the Federal Court and Court of Appeals. 
Most of these, as we have said, were quite young — in the very heyday of 
health and spirits — none of them being over thirty-five years of age. It is 
not to be wondered at, therefore, if they sometimes indulged in excesses 
which older men would have shunned. Here, it may be, we are violating 
the principal canon of modern biography, that bids us ' praise without 
ceasing, and always represent your hero without a blemish,' but these youth- 
ful statesmen were men, subject to like passions as we ; and why should we 
expect of them a higher standard of morals than obtains at the present time ? 
Public opinion, besides, was far less exacting on many points then than it is 
now ; and gaming and drinking, in particular, were hardly regarded as vices, 
and were practiced openly by almost every one. Certain it is, their assem- 
blies were often noisily, and even riotously, mirthful, and were sometimes 
the scenes of frolics which very proper persons might regard as scandalous. 
What would such a person think were he told that Mr. Clay was himself a 
rather wildish fellow in those days, and engaged in such freaks as the fol- 
lowing : 

" 'One night, after the bottle had circulated until a late hour, the great 
Compromiser announced his intention of finishing off the entertainment by 



IN THE LEGISLATURE. 



39 



a grand Terpsichorean performance on the table, which he accordingly did, 
executing a pas seul from head to foot of the dining-table, sixty feet in 
length, amidst the loud applause of his companions, and to a crashing accom- 
paniment of shivered glass and china; for which expensive music he next 
morning paid, without demur, a bill of $120! '" 

The Legislature at that period convened in October. October 1, 
1S49, Mr. Hardin remarked to a friend on the streets of Frankfort, 
pointing to the capitol, " thirty-nine years ago this day I first entered 
that building." He had forgotten at the moment that the capitol he 
entered in 18 10 had been destroyed by fire in 18 13. In 18 10 General 
Charles Scott, a companion of Washington and hero of the Revolution, 
was governor, and Gabriel Slaughter lieutenant-governor. John 
Simpson, of Shelby county, was chosen speaker of the House. Note- 
worthy among Mr. Hardin's colleagues was his kinsman, General 
William Hardin, representing Breckinridge county. Robert Johnson, 
author of the law afterward famous as the u Bob Johnson law," and 
father of the subsequently-distinguished Colonel " Dick " Johnson, 
was a member from Scott. At this session, also, Solomon P. Sharp, 
as a member from Warren, began the brilliant career destined to ter- 
minate so soon and so tragically. With the latter Mr. Hardin con- 
tracted a friendship undisturbed by subsequent political differences, 
and ended only by death. Nothing is known of Mr. Hardin's partic- 
ipation in the proceedings of the session — save as the journals show — 
and this would not lend interest to this narrative. The succeeding 
year he was again elected representative — elections occurring annually. 
At the opening of the session Simpson was again elected speaker. 
Johnson and Sharp were also members. Tunstal Quarles represented 
Pulaski county. Quarles was subsequently a member of Congress, 
and took a conspicuous part in the public affairs of that day. Hardin's 
friend, William Owsley, whom he had first met while he was studying 
law at Richmond, was, this session, the member for Garrard county. 
Their early friendship was now renewed "on the floor of the 
House." 

At this session Mr. Hardin introduced and secured the passage of 
a bill, the object and effect of which was to discourage dueling. It 
provided that attorneys and officers should take an oath that they had 
not fought a duel, or sent a challenge to fight, and would not do so 
during their continuance in office. This event was important because 
it marked the inauguration of a course of legislation that has contrib- 
uted to rid the country of a great evil. 



4Q 



BEN HARDIN. 



Dueling had become a great scourge in Kentucky at that day. It 
was almost unknown in earlier times when the Indian maintained a 
predatory warfare on the "settlements." But the red man having 
succumbed to the inevitable, the spirit of war in his white enemy 
sought new arenas for its display. In default of laurels on the tented 
field, and in the absence of a public enemy, he betook himself to the 
'• field of honor," to encounter a personal foe, according to the regu- 
lations of its "code." Every community in the State had its so- 
called affair of honor. Frequently the amende honorable — an amicable 
adjustment, or the pusillanimity of one or both the combatants arrested 
its progress. Often, however, it was consummated by a hostile meet- 
ing. A few bad shots, even then, sometimes produced sudden reflec- 
tion. The opportune intervention of friends not rarely proved effect- 
ual. A slight flesh wound of either combatant hastened the success 
of peaceful negotiations. When, however, the dead-shot — a numer- 
ous sort of person in such affairs — encountered an inexpert adversary 
— the kind he usually sought — the gentlemanly dead-shot avoided all 
danger by killing his man at the word. It was highly honorable, the 
reader will understand, highly honorable — or at least so considered in 
that perverted period. It must not be supposed, however, that the 
whole State or all its society was infected with this folly. Pugnacity, 
it is true, was the rule. The man of able body — who would fight in 
no fashion — was rare, and lacked public respect. Church relationship 
subdued, but did not extinguish, the combative passions. Premedi- 
tated personal altercations were indulged by the ruder classes. Men 
of the first respectability resented insults when given by a blow, and 
following it up, then and there avenged themselves. The late cente- 
narian, Dr. C. C. Graham, grieved to say that, on one occasion, his 
friend, Henry Clay, indulged in a fist-fight in the streets of Lexington, 
the provocation, however, being sudden and great. 

Rencounters with arms were not unfrequent, and their results often 
lamentable. To be distinguished from those who fought in these 
extemporaneous modes, was a class composed chiefly of professional 
men, politicians, men of fortune and social pretensions, who assumed 
to be the gentry of the land. This class laid claims to the highest 
sensibilities of honor. They were easily affronted by one of their 
own kidney. When affronted there were but two modes of redress — 
an apology or "the satisfaction due from one gentleman to another." 
If both these were denied, the injured party had left a full and efficient 
remedy which was to brand his adversary as a " poltroon, and a coward 



THE CODE OF HONOR. 41 

unworthy of admission to the pale of gentlemen.'" Thereafter the 
"escutcheon" of the injured party was restored to its normal con- 
dition, and was not a whit less effulgent than the barber's brazen basin 
which served Don Quixote for a helmet. The perversion of the term 
"gentleman" in these affairs was strangely absurd. One could not 
insult a "gentleman," if the latter decided the aggressor not a "gen 



h. 



tleman." "Gentlemen" were only insulted by "gentlemen." The 
offerer of insults or the doer of injuries by no means diminished his 
gentility, however causeless, brutal, and ungentlemanly his conduct. 
When the aggrieved party sent a challenge, the challenged party had 
the right to dictate the terms of the fight. This he did in such a way 
(as far as he could) as to afford himself every advantage over his 
adversary. Before the meeting each assiduously drilled himself in 
dueling tactics and use of weapons. At the meeting each confidently 
hoped to make a fatal shot. Sometimes (but all too rarely) both the 
murderers were killed. 

Thus in this jargon of crime, "one gentleman rendered satisfaction 
to another." The views actuating Mr. Hardin are aptly expressed 
in the preamble of the law referred to: "Whereas, the Common- 
wealth has repeatedly sustained great and irreparable injury in the 
loss of some of her best and most valuable citizens; inroads have been 
made in private families — their peace, happiness, and domestic felicity 
destroyed by the present inhuman practice of dueling; a practice con- 
trary to the precepts of morality, religion, and civil obligation, which 
originated in a barbarous age, fostered by savage policy and only per- 
petuated in this enlightened era by mistaken ideas of honor." He 
thus pronounced a judgment on the so-called "code of honor," from 
which few dissent now. At that period, however, it placed him in 
antagonism with a class — socially and numerically respectable. His 
views remained unchanged throughout life. During the constitutional 
convention of 1849 ne successfully advocated the incorporation of a 
similar provision in the present Constitution. 

The following extract from a speech made by him at the time will 
fitly conclude this subject. 

"The act of the Assembly of 181 1 on dueling was drawn up by myself, 
and carried through the House of Representatives by the aid of a gentleman 
one year younger than myself, Mr. Solomon Sharpe, one of the ablest and 
most eloquent men ever born and raised in Kentucky. And with the ex- 
ception of a single verbal error in the printing — 'have' for 'has' — it now 
reads precisely as it was drawn. I thought then, and I still think, it to be 



42 DEN HARDIN. 

a most excellent law. We had, sir, ever since Great Britain and France 
advanced a step beyond barbarism, and in this country ever since its foun- 
dation, the severest possible laws against dueling. 

" In the course of my reading as to the history of mankind, I have turned 
my attention some little to this subject; and, sir, from the days of Nimrod, 
the mighty hunter of Babylon, down to about three hundred years ago, I 
have not found a single instance where a private personal quarrel was set- 
tled by a duel. In every case where there were personal combats they were 
for public and not private considerations. The private combats before the 
walls of Troy and the walls of Jerusalem were fought by men in each of the 
armies opposed to each other, and in behalf of each army. 

"Such was the character ot the case referred to by the gentleman (Mr. 
Nuttall) between the three brothers of the Horatii and the Curiatii. There 
the fate of the battle, it was agreed, should turn upon their success. There 
is no instance of the modern duel presented until we come down to the time, 
when Francis I., of France, gave the challenge to Charles V., King of Spain 
and Emperor of Germany. There the practice took its origin, and it has 
been in existence ever since. And why is it? Because there is a notion, a 
ridiculous kind of opinion going abroad, invisible, intangible, and which no 
man can touch, called the 'code of honor,' which compels a man to fight in 
certain cases. Thus: Do you want to kill me? No. Do I want to kill 
you ? No. But there is some imaginary insult — -some supposed injury — 
and some sickly sensibility feels itself insulted, and asks for an explanation. 
The man who is asked is a little too proud to give it, and the parties corre- 
spond awhile, finally fight — and all about nothing. In a case where a real 
insult is offered, and a man gives another the lie, it ends generally in a fist 
fight, and there is the end of it. If it is an outrageous insult, such as seduc- 
ing a man's wife, or his daughter, the offender is generally shot down at 
once, and he is served pretty near right in having the thing administered to 
him in that way. It is only for small, imaginary, and idle insults that men 
fight duels. 

"But, says one gentleman, we must have a provision against the carrying 
of concealed weapons if we desire to guard against this terrible shedding of 
human blood. I should have no objection to that if it were possible to carry 
it fairly out, but we all know how indefinite such a provision would be. 
Here is a miserable old penknife that I carry, and it is a weapon. 

" Mr. A. K. Marshall : ' Deadly weapons are referred to.' 

" Mr. Hardin : ' It would be a deadly weapon if used as Jesse Swearin- 
gen did once an old penknife upon Mr. Gentry. He struck him with it 
in the breast, and it just touched his heart, and killed him instantly. But 
there is no need to make the carrying of concealed weapons a test of office, 
because the very conviction of a man for such an offense would be punish- 
ment enough to deter him. But if you arraign the duelist for his offense, 



SPEECH AGAINST DUELING. 43 

where will you try him ? We all know what public sentiment is on such a 
subject. Have you ever heard of a man in Kentucky being convicted of 
killing another in a duel? No, sir, and why? Because public sentiment — 
though in the teeth of the law — will not convict a man for that crime. The 
statute of 181 1, for eight or ten years after its passage, did a great deal of 
good, but after the Legislature got into the practice of relieving them from 
the effect of its operation, and during the last five and twenty years, I think 
I hazard nothing in asserting that every year has witnessed the addition to 
the statute book of a relief law of this kind. And instead of requiring the 
oath to go back to the passage of the law, the oath only goes back to a cer- 
tain day in the last session of the Legislature. 

" What I desire is, that there shall be created a sufficient apology to pub- 
lic opinion for the man who will neither give nor accept a challenge. No 
man wants to hazard his life or jeopardize that of another, or to give a chal- 
lenge, or to accept one— but he makes the sacrifice in obedience to a false 
notion of honor. All I desire is, then, to furnish an apology to public opin- 
ion for a man's refusing to be bound by this false notion of honor. But, 
says the gentleman, if you do not allow challenging, you will have street 
murders. Do we not hear of these being committed now all over the coun- 
try ? And who are the perpetrators of them? Why, by the young Hot- 
spurs of the land. This provision is not now in the Constitution, and why 
do they not resort to the duel in such cases? Just because it suits them 
better to kill without a duel than with it. They become excited, and under 
the hope and confident belief of being cleared from the consequences 
through the influence of their own family and powerful friends, they are 
tempted to commit the crime. I could name to you, as having occurred 
within the last ten years, some of the most flagrant and atrocious murders 
where the parties could have fought it out in a duel. But there is a desire 
in the country, on the part of a great many men, to indulge their violent 
and angry passions because it gives them a reputation of being brave men. 

" Sir, there are a great many men who are skilled in the use of weapons, 
and are ready to show their bravery by fighting and killing you, that would 
not storm a battery as quick as you, if they were at the head of an army. 
They practice themselves in the use of weapons — some with small swords 
and others with pistols — until they become exceedingly expert, and they are 
able to come on the ground with a confidence in their superior skill that 
unnerves their antagonist and gives them additional nerve. Nor are these 
combats on equal footing in other respects. Here is a young gentleman 
with no wife and family, to whose reckless feelings life is nothing, and he is 
ready enough to fight. Another young man of five and twenty has a wife 
and family of four or five little children so near an age that you can hardly 
tell which is the oldest, and all dependent upon his daily exertions for their 
bread. The risk, therefore, is all on his side. 



44 BEN HARDIN. 

"One of Alexander the Great's successors, called Antigonous, noticed 
among his soldiers one who was conspicuous in the army for his daring 
courage and disregard of danger. Sending for him, he observed that the 
soldier looked pale and sickly, and he asked him what was the matter with 
him. Said he: 'Sire, I have, long since, lost my health.' The king 
ordered his physician to attend him, and save his life, if possible. He com- 
plied with the injunction, and restored his patient to robust and vigorous 
health. The king, observing that he no longer exhibited that courage and 
daring which previously characterized him, sent for the soldier the second 
time, and asked him what had caused this change in his conduct. ' Sire,' 
replied he, ' your physician has made me a coward. When I was sick, my 
life was a burthen to me, and I did not care how soon I lost it, but, in giv- 
ing me health, he has given to me the enjoyment of life, and I fear to lose 
it.' This thing depends greatly on the temperament of a man. Some are 
reckless and willing, at any moment, to risk their lives. Others who did 
not hesitate an instant to hazard their lives against an enemy of their 
country, and shed the last drop of their blood in its defense, would, in no 
case, engage in a private encounter. 

" We know that dueling does not stop killing in the streets, or assassina- 
tion on the highways. No, sir, this is a mistake, and nothing will stop it 
but a sense of certain, positive, and speedy punishment. And how are we 
to stop the practice of dueling? We are to furnish men who are in doubt 
as to a point of honor with a competent apology for avoiding a duel. That 
is all we want. There is not a man in the world, enjoying health, and who 
has friends and connections around him, that does not love life. Look at 
the man in the last agonies of death, and see how he clings to life. And 
why ? Because he loves life. And yet, a false notion of honor, or, rather, 
a false public opinion, will force the man in fine health to hazard his life to 
a false notion of honor. Frederick the Great, of Prussia, was one of the 
ablest and bravest men who ever fought at the head of an army, and yet, 
what did he say to the duelist ? Why, that, if a duel was fought, he would 
hang all concerned in it, and, if he could find out where was the place of 
meeting, he would go there himself, with his hangman, and hang up the 
survivor without a trial. Has not Great Britain lately hung several men 
who killed others in duels? A Colonel Campbell there killed a man in a 
duel, not long since, and was hung. And other instances might be men- 
tioned. 

"And Kentucky is the only country where no man has ever been pun- 
ished for giving, accepting, carrying a challenge, or killing his antagonist in 
a duel. What inroads have been made in the family of Alex Pope, my old 
friend, with whom I practiced law until he died, by tlie dueling propensities 
of those two young men, Henry and Fountain Pope. One was killed in 
Arkansas, and the other near Louisville, without any cause, if the parties 



SPEECH AGAINST DUELING. 45 

had understood each other. The parties fought, at the distance of twenty 
yards, with shot-guns. 

" Did I not know, while in Washington, Barron and Decatur, two of the 
first men at that period in America, come up in mortal array within sixteen 
feet of each other, because one was near-sighted, and the rule was that both 
should take deliberate sight before the word to fire was given. They both 
fired and fell with their heads not ten feet apart. And before they were 
taken from the ground, each expecting both to die, they spoke to each 
other, and a reconciliation took place. They blessed each other and 
declared that there was nothing between them. All that was required 
to prevent the meeting was an explanation between them. There was 
the case also of McCarty and Mason, own cousins, who fought one of 
the most murderous duels on record, because McCarty voting for another 
man, Mason being a candidate felt aggrieved, and challenged his vote on 
the ground of not being twenty-one. McCarty first proposed they should sit 
over a keg of powder and set fire to it, but Mason declined. Next he pro- 
posed they should go to the top of the capitol and, hand in hand, jump from 
the parapet wall to the ground, a distance of ninety feet. This Mason also 
declined. Then McCarty proposed they should fight with muskets with 
three balls apiece, which Mason accepted, and then they went out and 
fought eight feet apart — about nothing. McCarty has told me that the duel 
was forced on him by one of Mason's seconds. 

"Such are the bloody scenes which illustrate this 'code of honor,' as it 
is styled. In the poems of an old English satirist, Churchill, is a satire 
against dueling, which, I remember, made a strong impression on me when 
I first read it, many years ago. In speaking of the duelist's honor he says : 

" ' His honor is like a maiden-head, 
Which, if in private brought to bed, 
Flaunts and flutters about the town, 
And is never missed until the loss is known.' 

"Such is just about the character of the insults for which men fight 
duels. A real insult is resented at the moment, and an uncertain or imagi- 
nary one leads to the duel. In the last case the parties correspond and con- 
sult their friends and seconds, who generally are young Hotspurs, who take 
a great deal more delight in acting as second than principal. A great many 
of these seconds, no doubt, feel very much like the lawyers in a case in 
court ; they would a great deal rather see their clients pull the hair the wrong 
way than get at it themselves. And, in ninety-nine cases out of one hun- 
dred, an amicable arrangement of the difficulties between the parties is pre- 
vented by the seconds. 

" In the recent case of young Pope, I have no doubt that had my young 
friend over the way (Mr. Preston) been one of the seconds, he could have 
stopped it. The gentlemen who did act as seconds were equally respectable 



46 BEN HARDIN. 

and worthy, but perhaps they were not so prudent and discreet in going back 
to the origin of the quarrel and having it arranged, as they might have done. 
The evil is that in these controversies, in ninety cases out of a hundred, the 
parties get into the hands of men who believe they will be brought into con- 
sequence by becoming seconds in a duel. 

' ' I hope the convention will not adopt the amendment offered by the gen- 
tleman from Louisville (Mr. Preston) to leave this matter to the control of the 
Legislature. Can there be any law proposed which does not now exist ? No. 
Is it not death, if a man is killed, to all the persons concerned? It is; and if 
it is, it is the strongest kind of disqualification to hold any office in the future, 
I warrant. But is there not a law now in existence disfranchising from office 
any one who gives or accepts a challenge? There is; and what good can 
be attained by the passage of any further laws on the subject ? If left to the 
Legislature, they will continue to pass special laws relieving men from the 
penalty, and thus nullifying the statutes. 

' ' What more, then, can you do ? You can furnish to the man who desires 
not to fight, an apology to public opinion for refusing to give or accept a 
challenge. Let the Constitution contain this disqualification, and you will 
attain this object by putting it out of the power of the Legislature to absolve 
a man from the penalty. These were the sentiments I uttered thirty-eight 
years ago in the legislative halls of Kentucky, and I was supported in them 
at that time by a young man one year younger than myself, and one of the 
most eloquent and able men Kentucky ever knew — I mean Solomon P. 
Sharpe." * 

* Debates (Ky.) Conv.,824. 



CANDIDATE FOR CONGRESS. 47 



CHAPTER VI. 

THE KITCHEN KNIFE. 

THE leaders of the Federalist party opposed the war of 1812. 
For this reason, chiefly, that party was charged with "being the 
friend of Englishmen" during the struggle that ensued. On the suc- 
cessful issue of the American arms the Federalists, as an organized 
party, ceased to be factors in political affairs. With the peace that 
ensued began that tranquil period in American history — that " era of 
eood will " — that had its culmination under President Monroe's admin- 
istration. The National Republican party, of which Jefferson was the 
recognized founder, was, at that period, alike the party of the govern- 
ment and the people. Within its ranks were questions that caused 
differences, but they partook more of policy than principle, more of 
men than of measures. For example, there was some attempt to 
arouse the jealousy of other States because Virginia had continuously 
enjoyed the Presidency, save the single term of John Adams. The 
question of establishing a national bank was agitated. Differences 
also existed on other questions. But all this was within the Republi- 
can fold. Generally, the Federalists themselves had as resolutely 
turned their backs, not only on their organization, but on its very 
name, as earnestly as within a half century later " Know-Nothings" 
deserted a shipwrecked party. 

Madison's administration had been eminently successful. The dif- 
ficulties that beset the opening of his second term were clearing away 
early in 181 5. The triumph of General Jackson over the British forces 
at New Orleans in January of that year flattered American pride in a 
degree that later generations can not conceive. The treaty of Ghent 
of December 14, 1814 (not known in this country till after the battle), 
filled the cup of public complacency to its brim. In such a " piping " 
time as this Mr. Hardin became a candidate for member of the Fed- 
eral Congress in the Bardstown district. Having served two terms in 
the State Legislature with credit, and having, in his nine years of pro- 
fessional life, worked his way to the first rank at the bar, it was not 
out of the order of things for him thus to aspire. This period ante- 
dated the origin and domination of the caucus and political conven- 



48 BEN HARDIN. 

tion of later times. An aspirant for office was not able to make prog- 
ress by pleading his service to the party in the past or his ability to 
successfully carry its banner in the future. His services to his country 
were taken into account, his patriotism, his zeal for the public welfare, 
and his ability to assist in needed legislation, but the tribunal that 
measured and determined his merit was not a dominant party, but 
the people at large. For his competitor he had the venerable Gen- 
eral Matthew Walton, of Washington county — a most worthy man. 

General Walton had been an active participant in the public affairs 
of Kentucky from the earliest times. A Virginian by birth, he had 
been a soldier of the Revolution. He was a man of courage, and had 
especially won popular favor by his gallantry at the battle of King's 
mountain. He had removed to Kentucky soon after the capitulation 
at Yorktown. He was a member of the second Danville convention, 
in May, 1785, held with a view to a separation of Kentucky from Vir- 
ginia. Two similar conventions were held — one in the August follow- 
ing and the other in 1787 — and General Walton was a member of 
each. In the latter he represented Nelson county. He was also the 
representative of that county in the Virginia convention which ratified 
the Constitution of the United States. He was a delegate from the 
same county in the Danville convention of 1792, that framed the first 
constitution. He was also a delegate in the Virginia House of Bur- 
gesses for 1789 and 1790. He served in the Kentucky House of Rep- 
resentatives in 1792 as a member from Nelson, and in 1795 and 1808, 
from Washington county. In 1800 to 1803 he was member of the 
State Senate. From 1803 to 1807 he had represented his district in 
the lower house of Congress. In 1809 he was chosen presidential elec- 
tor for James Madison. He is said to have been proprietor, at one 
time, of one hundred and sixty thousand acres of land in Nelson and 
Washington counties, and from Salt to Green river many are the titles 
traced through Matthew Walton. The dwelling house he built for 
himself was the first of any pretensions to elegance erected on the 
soil of Kentucky. In addition to his fame as a soldier, and his long 
and varied political career, he was noted for high breeding, gentle 
manly deportment, and liberality. It maybe set down that Mr. Hardin 
had a formidable competitor. None of the issues and incidents that 
marked the canvass have survived. It was a warm struggle, as Har- 
din himself long afterward remarked. His majority of three hundred 
closed General Walton's public career. He died on the iSth of 
January, 18 19. 



THE KENTUCKY DELEGATION. 49 

The first session of the Fourteenth Congress began December 4, 
181 5. Henry Clay had been speaker of the Twelfth and the first 
session of the Thirteenth Congress, and was again chosen. The Ken- 
tucky delegation in the House consisted of Henry Clay, Joseph Desha, 
James Clark, Ben Hardin, R. M. Johnson, Alney McLean, Stephen 
Ormsby, Solomon P.Sharpe, Samuel McKee.and Micah Taul. Some of 
these names are wholly unfamiliar to modern ears and some but faintly 
remembered. Mr. Clay's career and that of Mr. Hardin, to a great 
extent, ran in similar lines and often together and finally ended the 
same year. Colonel "Dick" Johnson still freshly wore the laurels 
won at the Thames. In that battle between the American forces on 
one side and the British, under General Proctor, and the Indians, led 
by Tecumseh, on the other, it is said that during a charge by Colonel 
Johnson on the Indians that he slew their leader with his own hand. 
Some unknown bard thus announced the event: 

" Rumsey, dumpsey, 
Colonel Johnson killed Tecumseh." 

His congressional service had begun in 1807 and had been con- 
tinuous. Solomon P. Sharp, a former colleague and friend of Mr. 
Hardin in the State Legislature, will be spoken of elsewhere in describ- 
ing a tragedy that thrilled the State a decade later. Micah Taul was 
a lawyer of good reputation, who practiced in Pulaski county as early 
as 1800, and afterward in the Court of Appeals. His sole public 
service seems to have been performed as a member of the Fourteenth 
Congress. James Clark was born near the Peaks of Otter, in Vir- 
ginia, in 1799. At an early day his father emigrated to Kentucky 
and settled near Kentucky river in Clark county. His principal edu- 
cation was received from Dr. Blythe, afterward a professor in Tran- 
sylvania University. He studied law with his brother, Christian 
Clark, a distinguished lawyer of Virginia. Returning to Kentucky, 
he began practice at Winchester in 1797. He was a member of the 
Legislature in 1 807 and 1 808, where he occupied an influential position. 
He was appointed Judge of the Court of Appeals in 18 10, but after 
two years' service resigned. He was elected to the Thirteenth and 
Fourteenth Congresses. During his latter term he resigned, to accept 
the position of circuit judge. A decision rendered by him started 
the contest over the relief laws — famous in Kentucky history as the 
" old and new court " struggle. In 1836 he was elected governor and 
died in office. He had a strong mind and fine wit, and his literary 
attainments were respectable for his day. He had a fine person, 

4 



50 BEN HARDIN. 

lively disposition, easy address, and was an admirable story-teller. To 
these lighter graces he added all the stern and manly virtues that 
inspire confidence and command respect. 

Stephen Ormsby, for many years, beginning in 1780, was clerk of 
the courts in Jefferson county. He was appointed district judge on 
the organization of the State. He held this post until district courts 
were superseded by circuit courts, when he was appointed a judge of 
the latter. In 1787, he was a member of the Kentucky Society for 
Promoting Useful Knowledge, in which he was associated with many 
of the first citizens of the State. He was chosen presidential elector, 
in 1796, and voted for Jefferson, when John Adams was elected. He 
was a member of Congress from 181 1 to 18 17. Collins says: "He 
was highly esteemed as a man and as a public servant.'' 

Alney McLean was a native of Burke county, North Carolina. 
He emigrated thence to Kentucky, and began the practice of law at 
Greenville about [805. He was a captain in the war of 18 12, and 
took part in the battle of New Orleans. After the battle, he was 
assigned to very arduous fatigue duty, of which he complained to 
General Jackson. He received an insulting rebuff, for which he never 
forgave his old commander. He represented Muhlenberg county in 
the Legislature in 18 12 and 181 3. His congressional career and per- 
sonal association with Mr. Hardin began with the Fourteenth Congress. 

Joseph Desha, like Hardin, was of Huguenot descent, and, like 
him, was a native of Pennsylvania, where he was born December 9, 
1768. The similarity continues, in that they were both brought to 
Kentucky in early youth. His military experience began when he 
was fifteen years old. with Indian fighting. In 1794, he volunteered 
under General Wayne, and served with distinction in his campaigns 
against the Indians. For nine years previous to 1806 he represented 
Mason county in the State Legislature by successive elections. He 
served in Congress from 18 15 to 18 19. He was a warm advocate of 
the war of 181 2, was a major-general of volunteers, and present at the 
battle of the Thames. He was an amiable man, a gallant soldier, and 
greatly esteemed for his many virtues. 

In 1808 Samuel McKee was a practicing lawyer at Lancaster. He 
was legal preceptor and brother-in-law of the late Chief Justice George 
Robertson. He was elected to Congress four successive terms from 
the Lancaster district — 1809 to 18 17. At this session Kentucky was 
represented in the Senate by Major William T. Barry and Isham Talbot. 
Talbot was born in Bedford county, Virginia, in 1773. In his youth 



MR. HARDIN IN CONGRESS. 5 1 

his father emigrated to Mercer county, Kentucky. Scholastic advan- 
tages were limited at that day. YoungTalbot, however, attended the 
best schools in Harrodsburg. Without the aid of teachers he acquired 
an extensive knowledge of the languages, ancient and modern. Study- 
ing law with Colonel George Nicholas, he commenced practice at Ver- 
sailles. Soon afterward he removed to Frankfort and attained the 
first rank in the profession. He was elected to the State Senate in 
18 1 2, and to the United States Senate in 1815 as successor of Jesse 
Bledsoe. His term expiring, he was re-elected and continued in office 
until March 4, 1825. He died at Melrose, his residence, near Frank- 
fort, September 21, 1837. He was an accomplished lawyer and elo- 
quent orator. His rapidity of utterance was extraordinary. He once 
argued a case before the Supreme Court four hours. His speech was 
marked by impassioned eloquence, but his words flowed like a tor- 
rent. After adjournment of court Senator Talbot's velocity of speech 
became the topic of conversation with the judges. Judge Washing- 
ton wittily observed that " a person of moderate wishes could hardly 
desire to live longer than the time it would take to repeat deliberately 
that four-hour speech of Mr. Talbot." Mr. Hardin's kinsman, Mar- 
tin D. Hardin, succeeded Major Barry in the Senate in 18 16. Of his 
further career it may be of interest to say that he became secretary of 
State in 1820 under Governor John Adair. He published a volume 
of decisions of the Appellate Court in 1808 that bears his name. He 
took honorable part in the war of 18 12. He ranked high at the bar 
and enjoyed a large practice. He had inherited the sterling integrity 
of his father to which he had added the graces of a liberal scholar- 
ship. He died in 1823, widely regretted. 

The standing committees of the House were appointed December 
6th. Mr. Hardin did not take his seat until the 12th, so that in 
their arrangement he was omitted. He was afterward appointed on 
two select committees: "On soldiers, widows, and orphans," and 
"on changing the Western line of Indiana territory." During the 
session Mr. Forsyth, from the Committee on Foreign Relations, 
reported a bill to carry into effect the stipulations of the treaty of 
commerce lately concluded with Great Britain. It was opposed on 
the ground that it was but an echo of the treaty itself, that the treaty 
was the law of the land without the approval of Congress, and that 
Congress transgressed its powers in undertaking to give it force or 
restrain its operation. The debate to which it gave rise was pro- 
tracted and vigorous. Among those who spoke for the bill were 



52 BEN HARDIN. 

Forsyth, of Georgia; Clay, of Kentucky; P. P. Barbour, of Virginia; 
John W. Taylor, of New York; and Randolph, of Roanoke. In the 
opposition, among others, were Gaston, of North Carolina; Tucker, 
of Virginia ; Pinkney, of Maryland ; Pickering, of Massachusetts; Cal- 
houn, of South Carolina; and Mr. Hardin. Mr. Hardin made his 
debut on this question, and the following is taken from the report of 
the debates: 

"Mr. Hardin appealed to the plain common sense and intelligence of the 
House, whether the bill upon which they were lavishing so much of their 
time and exertions was not entirely superfluous and nugatory. Here was a 
treaty, a contract, fairly and with full deliberation, concluded between the 
lawful sovereignties of this country and Great Britain, ratified as the consti- 
tutional law of the country directed, by the President, with the advice of 
two-thirds of the Senate, and by the President proclaimed to the people as 
the law of the land, with an injunction for the due observance of it — con- 
taining nothing that interfered with the municipal laws of the country — no 
regulation that might not be carried into immediate effect without legislative 
interference — involving no call whatsoever for money, and yet tenaciously 
held up as an object of legislation, and made the subject of a bill which did 
little more than re-echo it. 

" He was as much aware as the gentleman who supported the measure 
that the treaty-making power could not, by a treaty, lawfully make war or 
impose taxes or encroach upon those powers the Constitution had deposited 
in Congress ; but it was no less true that the Constitution declares in unequiv- 
ocal terms that the President may make treaties, and that no restriction or 
limitation whatsoever, to his power in that respect, is specified in that instru- 
ment, which is sufficiently declaratory of the extent of the power, inasmuch 
as it says that treaties made in the form and with the authorities already 
mentioned shall be the law of the land. 

"Some of those honorable gentlemen, by way of smoothing the passage 
of the bill through the House, had argued that it was so far at least unob- 
jectionable, that it could do no hurt; that if it did no good it could do no 
harm ; but Mr. Hardin reminded the House of the eminence on which it 
stood, that it was composed of the assembled representatives of the nation, 
sent there to deliberate and to resolve upon its most important concerns, and 
he therefore deprecated, as it would be a dereliction of the high character 
of such an august assembly, their gravely deliberating upon nothing. 

"He respected the dignity of the body too much to give his assent to 
their entertaining a measure for no better reason than because it was harm- 
less. Besides, that act which now appeared so harmless, might ultimately 
turn out to be very mischievous as a precedent; and this violation of the 
Constitution in a thing, no matter how trifling, might hereafter be made the 



SPEECH ON THE BRITISH TREATY. 



53 



ground of more daring encroachment. On this point he warned the House 
to be cautious, to guard, not only the main body, but the outposts ; and to 
reflect in due time that some twenty or thirty years to come this precedent 
might be brought forward to the incalculable injury, perhaps to the ruin, of 
the Constitution. 

"Gentlemen had said that, on a commercial subject, no treaty could be 
obligatory, because the Constitution had assigned to Congress the regulation 
of commerce. Where, then, said he, will gentlemen stop? To Congress, 
say they, is delegated the exclusive jurisdiction over everything. Accord- 
ing to their construction, therefore, the treaty-making power was impotent, 
a nullity, it could do nothing; it could not make peace, because peace repels 
war, the right of making which is delegated to Congress; and it could not 
form alliances for the same reason. But gentlemen, he observed, seemed not 
to recollect the old maxim, that he who proves too much, proves nothing. 
The President, say they, can not repeal the excise ! No, but the President 
can make a peace without the concurrence of that House, and fortunate it 
was that he could do so. 

"We now, said Mr. Hardin, feel the happy effects of that power, and 
conceive that a treaty of peace has been accomplished without any encroach- 
ments or pretended encroachments on our congressional acts. The power 
to treat generally, he said, was vested in the President by the Constitution, 
but to the law of nations it was left to determine the limitations of that 
power. If it be true, said Mr. Hardin, that, by the terms of the Constitu- 
tion of the United States, this treaty is already the law of the land, then is 
the treaty guaranteed by that Constitution, and yet, gentlemen insist that it 
is not valid, and that this House ought to be consulted. By the Constitu- 
tion, Ave are forbidden to be heard on the subject, yet they will have it 
otherwise, and, by this species of indirection, this left-handed course, bring 
the treaty under our legislative cognizance. Sir, I say we can not do indi- 
rectly that which we are forbidden to do directly. Treaties might be made, 
no doubt, he said, for the execution of which it might be necessary to call 
upon the House to make laws — offensive and defensive treaties, for instance, 
which could not otherwise be carried into effect — but when, as in the 
present case, the treaty was complete, and capable of executing itself, noth- 
ing of the kind was necessary. 

'• As to the instances which had been adduced of Congress being called 
upon to enact laws for carrying treaties into effect, he believed that there was 
not one of them similar to this. The case of Jay's treaty was not. The 
Federalists supported that on two grounds — one that it was a good treaty, 
the other that, whether good or bad, it would not be consistent with the 
honor of the country to reject it — but it never was brought forward as this is, 
a re echo of itself in the shape of a bill. And, as to the cases taken from 
the proceedings of the British records, the organization of that Government 



54 BEN HARDIN. 

was, in all respects, so different from ours, that it was impossible to argue 
fairly or conclusively from the one to the other." 

Mr. Hardin participated in the debate in relation to the revenue, 
and urged tax reductions. He was ranked with the opponents of the 
administration of President Madison on this and other questions. In 
his speech on the bill for repeal of the direct tax, he freely criticised 
the administration and its modes. In the same speech, he made sar- 
castic allusions to Mr. Clay, which the latter, with some temper, 
resented. Mr. Clay was a friend of the administration. He, perhaps, 
did what he could in his capacity of speaker to discourage and embar- 
rass Hardin in his attempts against it. Hardin made more than one 
effort to get the floor before he succeeded. On the occasion of one 
of his failures, when ruled not in order, he retorted that, ' ' being a new 
member, he knew little of what was called order in the House, and did 
not mean to violate it ; he had heard a great deal about it, but had 
seen very little of it since he had taken his seat." On January 24th, 
on his motion to declare the repeal of the direct-tax expedient, he 
made a speech from which the following is taken : 

" Mr. Hardin said that on Saturday last he had notified the House that in 
some shape or other he intended to bring the question before them as to the 
expediency of repealing the direct tax ; that on that day he had made one or 
two efforts to bring the question directly before the House when in Commit- 
tee of the Whole, but every attempt failed, because, as alleged by the Chair, 
it was not in order. 

" It ought not to have been a matter of importance to the Chair, in his 
endeavors on that day to present the question for consideration, whether he 
was or was not exactly in trim order, because, if a man be entitled to admis- 
sion, his bowing at the door like a Frenchman or an Englishman, a beau or a 
clown, as long as he behaved decently, did not add to or diminish his right. 
Nor did he believe that this want of a little ceremony deemed important by 
the Chair ought to have prevented him from being heard upon a great national 
question when he was solicitous to address the House on the subject, or 
because he had at that time the complaint so common to some gentlemen in 
this House, to-wit : the speech-making fever. Mr. Hardin said that the 
amendment to the resolution of the Committee of Ways and Means having 
been offered by him, it laid him under some obligations to the House to 
assign the reasons which had induced him to do it. 

"Mr. Hardin said he approached the subject with great diffidence and 
reluctance. Diffident he was, because he distrusted his own capacity to do 
the subject justice; and reluctant he was, because to his great regret he had 
witnessed in that House an unconquerable indisposition to alter, change, or 



SPEECH ON THE DIRECT TAX. 55 

modify anything reported by any one of the standing committees of the 
House. He said the manner in which the legislative business was conducted 
destroyed the freedom of legislation altogether. The President signified his 
will to the heads of departments. They made their annual report to the 
House, recommending the adoption of certain measures. It was pretty well 
understood that what they recommended was the will of the Executive. The 
reports of heads of departments were referred to the standing committees, 
a majority of whom were followers of the Executive. They kept in secret 
conclave for a month or two, until the House became all anxiety, and solici- 
tude was on tiptoe. Each day an inquiry would be made when they would 
report. 

" Not ready yet, would be the answer. The members of the committee 
looked grave, pensive, and melancholy, as if oppressed with a mighty weight 
of thought. At last they had burst upon the House with their report; and 
what was it when made ? A mere echo, a. mere response to executive will, 
with small and immaterial variations, intended for the purpose of inducing 
the House to believe that they had matured the subject well, when, perhaps, 
they had never thought about it ; pre-determined from the first, to re-echo 
back in substance the Presidential will, and when the report thus made 
finds its way into the House, it is fixed. Right or wrong, it must not be 
altered. Each member of the committee adheres to it, each hanger-on ap- 
plauds it, and all, as the poet says, ' Who live and never think,' support it. Mr. 
Hardin said that independent of the disadvantages he labored under as above 
stated, he also felt a little chagrined at the manner in which these questions 
respecting the taxes, direct and indirect, are brought before the House. 
Each item of taxation being separately discussed, each wheel of the machin- 
ery is separately presented, and we are admonished not to touch it, because 
the whole work will be stopped if you touch one of the wheels. I have 
heard of many maneuvers in military and naval tactics. This, sir, may, 
for what I know, be a system of legislative maneuvers, and it is a most 
admirable one to answer the object intended. I know of many who would 
gladly make alterations in the system, but do not attempt it for fear of break- 
ing up its foundation. The committee have had it under consideration for 
a month or two, and we ought not to meddle with it. Mr. Hardin said the 
task was too herculean for him to believe that he could effect and procure 
the adoption of the amendment proposed by him. Hence arises, said Mr. 
Hardin, my reluctance, Mr. Chairman, to address at this time this honorable 
committee ; but as I pledged myself to the House on Saturday last I would 
make this effort to repeal the direct tax, I now proceed to redeem that pledge 
— to perform that promise. 

" It is contended by those in favor of the continuation of the direct tax, 
among whom I am sorry to see my colleague, the honorable Speaker, first, 
that the direct tax is necessary, in aid of the present and prospective receipts 



56 BEN HARDIN. 

of the Treasury, to enable the Government to meet the demands against her, 
which consist of the necessary expenditures for the civil, diplomatic, and 
miscellaneous expenses; the military and naval establishments; the interest 
on the national debt contracted since the war. It is furthermore contended, 
even should the sum proposed to be raised by the continuance of the direct 
tax be not actually wanting for the purposes and objects above alluded to, 
yet, that the system itself ought to be preserved, and ought never hereafter 
to be abolished, because it will enable Government to extend her internal 
improvements, add a large sum to the sinking fund, and, also, by preserving 
the system, the machine can readily be put in motion whenever another war 
or the energies of the Government may demand. 

"The first point which I shall endeavor to prove, Mr. Chairman, will be, 
that the sum contemplated to be raised by the direct tax, for the purposes 
mentioned by those who are in favor of the tax, is not necessary to effectu- 
ate those objects. Secondly, even if it should be necessary, sooner than the 
tax should continue, it would be better to reduce the standing army from ten 
to six thousand, which reduction would relieve the treasury from an annual 
demand of nearly the net proceeds of the direct tax, I shall also endeavor 
to show that if the tax be not necessary to enable the Government to meet 
the demands against her, it ought to be repealed as a very unwise and 
odious tax ; one oppressive in its collection to the Government and oppress- 
ive to the people. I shall, in discussing the several points, in passing along, 
notice such observations as occur to me, and I deem materially pertinent to 
the point, which were made in opposition to the doctrine I now contend for. 
And lastly, as we have in this House heard much of national glory, and in 
what it consists, particularly from the gentleman from South Carolina, I shall 
give, as briefly as I can, what constitutes the national glory of a Republican 
Government. As to the first point I propose to establish, permit me, before 
I enter into an enumeration of facts relating to the demands against the 
Government, and which she will be bound annually to pay, and also of the 
probable receipts of the treasury, to inform this House that I have no data 
to make my calculation from except those furnished by the Secretary of the 
Treasury ; and I am induced to believe that his statements of facts, so far 
as I rely upon them, to prove the points I contend for, will not be doubted, 
for when he makes his estimates from conjecture they are made, it is evident, 
as unfavorable to my side of the question as he could possibly make them. 

"To get the money, Mr. Chairman, into the public coffers is the object; 
to apply it to the sinking fund is the pretext for getting it ; thus the real 
object in collecting the money may be three or four-fold. First, to have 
money at hand to squander it away upon flatterers and favorites. Secondly, 
to keep up the system of taxation to strengthen the executive by the addi- 
tional means of distributing offices, and, perhaps, added to these reasons 



SPEECH ON THE DIRECT TAX. 57 

there may be some little reluctance at seeing some favorites go out of office 
who are now in, and who must be turned out if this law be repealed ; or per- 
adventure, though the idea I acknowledge is somewhat romantic, to give the 
heir apparent when he fills the Presidential chair (Mr. Monroe) the popular- 
ity attendant upon the repeal of such odious laws, which will be the means 
of insuring his re-election. But we are told, Mr. Chairman, that this reso- 
lution, to which I propose the amendment, is only for one year ; this is only 
sugaring the pill to make us take the medicine the better, for if it be neces- 
sary for one year it is necessary for years to come. It will be recollected by 
the House, that on account of the peace the receipts of the treasury for 
1S15 were upward of $13,000,000 more than the demands against the Gov- 
ernment, and also the receipts which will accrue before the double duties 
expire, which is in June, 18 16, will bring such a sum into the treasury as will 
enable the Government to meet the extraordinary demands against her, 
which demands consist in the appropriations this session to pay off the 
demands, due the army and the treasury notes now in circulation. The sec- 
retary, in his report, says that it is not necessary to legislate for one year 
only ; that the treasury is competent to meet all the extraordinary demands 
against it this year. 

"But if it were otherwise, and it were necessary to reduce our expenses 
within the income from duties on commerce, Mr. Hardin said, he would reduce 
the army. He was aware that, in approaching this subject, he touched a 
hornet's nest, and perhaps would be stung. The army, which in 1802 was 
deemed so hurtful, was now the favorite, because by its means our friends 
get into office, and we must have an army of ten thousand men ; that is, on 
paper. It was not cared whether we had the men, so that we have the offi- 
cers and the surgeons, contractors, etc. So that we have the hulk of this 
mammoth, we care little for the blood and sinews. No, Mr. Hardin said, 
the ranks of the army are not filled. During the late war, though we had sixty 
thousand men on paper, we had at no time twenty-five thousand in the field. 
We had plenty of officers — so many of them that he had heard a suggestion 
that they ought to be reduced and organized so as to assist to fill the vacant 
ranks. He was, he said, for reducing the army to six thousand men. But 
the House was told the army must not be reduced ; that the defense of the 
nation ought to be regarded as a primary object. Certainly; but was it to 
depend upon a standing army? Let me remark, said he, that this argument 
is inconsistent with the genius of our Government, which requires us to 
depend upon the militia for our defense. For that object every citizen is a 
soldier. Whenever this people can not defend their liberties, then has the 
body politic become rotten, then may we bid farewell to liberty. But it is 
said that these ten thousand men are necessary for garrison service. Where, 
he asked, were garrisons necessary? If they were necessary for the whole 
country, from the district of Maine to the mouth of the Mississippi, there 



58 BEN HARDIN. 

ought to be a hundred thousand instead of ten thousand men. What are 
three or four hundred men in this or that spot for the purposes of defense 
against an invading enemy? Mr. Hardin said he would like to see a garrison 
at New Orleans and at one or two posts on the frontier. But of what account 
would be a few at one place and a few at another? There was a regiment at 
Prairie du Chien ; of what account are they? These Indians have no dread 
of permanent garrisons, but of mounted riflemen. What could a few decrepit 
men do against a horde of active and vigorous Indians ? But we are to have 
not only this force, but the executive project of an invalid corps of two 
thousand men, to be used for garrison service, and we are to put these one- 
legged and one-armed men to watch the Indians on the Wabash, who flit 
about like ghosts — here to-day, there to-morrow ; who can travel a hundred 
miles in a night on an emergency ; who have an open frontier if they wish 
to come, to which garrisons at two hundred miles apart afford but little pro- 
tection. These Indians dread a contest with the United States ; they know 
the people of the West only wish an opportunity to crush them, and that they 
have the ability to do it. Where, then, said Mr. Hardin, are we to employ 
our ten thousand men? Against Spain, says the Speaker; for, somewhere 
or other, either at a ball, party, sleighing match, or in a hack, the Spanish 
minister had signified something about the Floridas. What did he say, or 
where did he say it, no one knows. The story about this talk of the Spanish 
minister put him in mind of the preacher who gave notice that he should 
begin at such a point on Kentucky river and preach all the way down from 
day to day, and the particulars of that story were about as well defined. 

" But if it were true, was this to be held up as an object of terror to us? 
Proclaim, said Mr. Hardin, to the people that Mexico is free soil, that the 
land on Red river will be theirs if they conquer it, and the Western people 
will swarm upon it like the locusts upon Egypt. These ten thousand regulars 
are not wanted for that purpose ; the Spaniards would not be a breakfast for 
us. But these men are to be kept up. Why? Because the Spanish peo- 
ple have rebelled against their own government in the provinces. The very 
circumstance of the rebellion is the strongest reason why Spain should be 
friendly toward us. She knows, if the United States were to march its forces 
there, the standard of liberty would be everywhere erected. This, then, is 
no reason for keeping up the army. But, it is said, the affairs of Europe are 
unsettled. When were they ever more settled ? When the army was reduced 
during Jefferson's administration ? Mr. Hardin said he believed not. We 
are under no obligations to engage in every contest which arises in Europe. 
What power in Europe, he asked, has a disposition to invade us ? None. 
What danger menaces us from any quarter ? None. Why, then, keep up 
an army to fight windmills ? Are the double and triple alliances to be the 
order of the day, such as those of George I.? Mr. Hardin said he abhorred 
them and we had no business with them. 



SPEECH ON THE DIRECT TAX. 



59 



" But the gentleman from Kentucky (Mr. Clay) had said, instead of 
diminishing, he would have increased, the army. Was it possible that the 
gentleman had lost his old ideas on this subject ? Was it necessary to the 
safety of this republican government to maintain large standing armies? Or 
was it, Mr. Hardin said, that the gentleman had snuffed the tainted gales 
from the plains of Waterloo, and was disposed to fight and to negotiate with 
every nation ? During Washington's administration the army had never been 
as high as even eight thousand men ; and there was less danger now than 
then. The powers of Europe had as little regard to justice then as now. We 
were then weak compared to what we are now, and more inviting to foreign 
invasion, as being an easier prey. When we have increased from three to 
eight millions, can we be in greater danger than we were then, when a smaller 
force was deemed sufficient ? Every means of offense and defense have pro- 
portionately increased with our population. The importance and magnitude 
of the establishments in Europe have increased, it is said. In name they 
may, but they are not in effect as strong; we shall soon seethe military pow- 
ers, drawn together by a common object to put down Bonaparte, plunge 
their daggers in each other's bosom. Mr. Hardin said his hair did not stand 
on end at the glimmer of moonlight through the trees. These fears, which 
had been expressed by other gentlemen in debate, might arise from minds a 
little distempered by too great a desire to preserve the nation. Mr. Hardin said 
he was opposed to a standing army on principle; and the more so, because 
all the train of bloodsuckers about it were to be sustained by taxes on the 
people. Down with the whole system, said he ; down with it, like Lucifer, 
never to rise again ; and let us depend on militia, well trained and well dis- 
ciplined — on militia, happy at home ; not a militia who are ground down by 
taxes — a militia, not like dogs and spaniels, that the more you chastise them 
the more they like you. Militia must be disciplined ; but they will not fight 
without affection to their country, created by an attention on your part to their 
interests. There are two kinds of patriotism, Mr. Hardin said — the clam- 
orous whip-syllabub patriotism — one rain will wash it all off; and the other, 
that of the man who reaps his own harvest, cuts his own grain, and uses it 
after it is cut; the man who has a fireside and a farm of his own, who, like 
the Scythian, refuses to go from home to fight, but will fight to the death if 
an invader comes to his father's tomb. Carthage had a standing army, and 
she fell. Rome had but a militia, and defended herself. The instant she 
established a standing army, disorder, confusion, and mobs ensued, and she 
soon became, by means of her military champions, a prey to the veriest des- 
pots the world ever knew. These are the effects of standing armies, to main- 
tain which the direct tax is to be retained. I have made these remarks with 
a view of showing that we ought to get rid of these taxes, even at the 
expense of this governmental favorite. If necessary, let us strangle it. Mr. 
Hardin said, however, he would not go the length of some gentlemen in their 



60 BEN HARDIN. 

ideas of economy. He was in favor of a gradual increase of the navy, one 
consistent with our means, and for all those expenditures which a liberal, 
not a profuse, policy will require. 

"Mr. Hardin proceeded to examine the merits of this tax, to show that 
if it could at all be dispensed with, it ought to be put down. The money 
arising from the direct tax was the mosf expensive that ever came into the 
treasury; it is put down as costing three hundred thousand dollars in 
the collection; but, Mr. Hardin said, he would venture to say that the 
actual cost of collection would be found to be not less than four or five 
hundred thousand dollars, what with your collectors, commissioners of the 
revenue, and a hundred other officers. Was it not important that contribu- 
tions should not be levied in this inconvenient and expensive mode? If 
the money must be collected, why not find a way of loosing the purse-strings 
more conveniently? If money be collected by indirect taxes, the consumer 
has the option whether or not he will buy the articles so taxed, whether he 
will run his stills or not. He has an option, and this of itself sweetens his 
feelings. 

But, when the proud, official, strutting, consequential character, the deputy 
collector, waits upon him with his saddle-bags upon his arm, and takes his 
bed from under him to pay the direct tax, he feels indignant, and wishes he 
had not been born in such a government. Besides, the direct tax is that tax 
by which the State governments are, and always must be, supported. Is 
this mode of taxation selected in order to let the people know who protects 
them? Surely not. This was a tax, hateful to the people, and subjecting 
them to innumerable frauds. The best half of the men employed in this 
business of collecting a few cents from one, a few from another, and so on, 
were scoundrels and cheats, and would not stop at doubling the amount of 
the tax they ought to collect from a man who was not well enough informed 
to detect their roguery. Fortunately, or unfortunately, it had been his 
duty, as a professional man, to detect practices of this kind. Tiiese col- 
lectors, he said, were something like the man's son whose father told him to 
make money, honestly, if he could, but to make money. Most of them 
cared but little how they made it. The direct tax is a costly, odious, and 
oppressive tax, which strengthened the arm of the Government by oppressing 
the people. He had witnessed, with some regret, the rapid increase of 
executive patronage; he had witnessed, with pain, the efforts to make the 
arm of the mighty stronger — to extend that executive influence which had 
already swollen to a mighty torrent, carrying devastation before it. Instead 
of this he hoped to see the streams reduced, dried up as fast as they could 
be ; so that this river, instead of carrying destruction to every one coming in 
contact with it, should be confined within its banks, as in the time of Gen- 
eral Washington ; he wished to see it used in the good old way, and the good 
old way, believe him, was, at last, the best. 



SPEECH ON THE DIRECT TAX. 6 1 

" Mr. Hardin said he had heard a great deal since he came here about 
what is called the national glory. What it meant precisely he knew not. 
If the glory acquired in the late war was meant, he begged to distinguish 
Congress and the President from the sailors and the army who fought our 
battles. The latter had acquired glory by land and sea which would last 
until the history of these times shall be no more. As to the President and 
Congress we had better say nothing about the glory they have got. I know 
several gentlemen in Congress who obtained in the war imperishable fame, 
who carry about them honorable scars. But their merit does not attach to 
Congress. Congress met in October, 1811, to prepare for war. It was 
declared in June following, and their first troops, in a month after they went 
out, had to come back and beg for clothing from the ladies of Kentucky. 
How will Johnny Congress feel when the pen of history tells this fact? When 
the pen of the historian narrates the disgrace of the affair at Bladensburg, 
how will the President and Secretary of State feel ? How will the members 
of the executive feel when it is recorded that men, drafted in August in 
Kentucky, sent down in November, were drawn up on the West bank of the 
Mississippi river, without arms ? It was something like a crop he once heard 
of on a plantation : The overseer had a share and a half, and every other 
hand had a share but Jim, and he had none. He was afraid that Johnny 
Congress would come out about the glory of the war, as Jim did in the crop. 
He was astonished to hear the gentlemen talk about glory gained by the 
Government in the war. Many of our soldiers and sailors had acquired 
glory, and more than one member of this House had distinguished himself in 
a manner to do them honor, and make their children proud of their name 
to the third or fourth generation. But the Government had gained none. 
We had not, he said, gained any one point for which we went to war, and we 
lost a part of our fisheries, part of our tonnage, etc., and this is the amount 
of our gain. He differed from gentlemen in their views of national honor 
and glory. It did not consist, he said, in a standing army, but in the reduc- 
tion of the national debt and the expenses of Government also, so as that 
every citizen should be enabled to enjoy the fruits of his own industry, and 
be ready on occasion to defend his own fireside. It seems we are to have 
national glory by opening great military roads from here to New Orleans — 
one in this direction, one in that. 

" Whenever a farmer in the country, said Mr. Hardin, purchases more 
than he can pay for, we suspect he is going to ruin, and that a commission 
of bankruptcy will soon issue against him. Whenever a Government lav- 
ishly disburses money, more than her income, it equally proves that the 
Government is going to ruin. Establish a moneyed aristocracy, separate and 
distinct from the body of the people — which will be the effect of your sys- 
tem — and in the course of a few years the ax will be laid to the root of the 
tree of liberty, and the last stage of freedom in this world, and when it falls, 



62 BEN HARDIN. 

it will fall with a mighty crash, never again to rise. Such will be the end of 
this mighty glory. How can we pay off the national debt, if we give in to 
these projects of invalid corps, military academies, turnpike roads, canals, 
etc , which are to consume so much money ? The national glory consists 
in the pristine principles of this government, in the blessings of tranquillity 
and comfort at home and peace with all foreign powers." 

The most important measure of the session, by far, was the bill 
introduced by Mr. Calhoun, for chartering a national bank. In 1811 
a similar bill had been brought forward by the Federalists. In the 
House it had at that time been indefinitely postponed, and in the Sen- 
ate was rejected by the casting vote of the presiding officer. Mr. 
Madison was then hostile to the measure, and that circumstance, in 
large degree, contributed to its defeat. The views of the President 
had, however, undergone a change. In the interval, a foreign war 
had been fought and honorably terminated. The financial exigencies 
of government had largely increased. Crude systems of banking 
throughout the country had begotten great monetary derangement. 
At such a time reasons might well have operated that, under other 
circumstances, would have been powerless or insufficient. 

Mr. Calhoun and Mr. Clay were the especial champions of the 
bank measure. Among their able allies were Forsyth, Lowndes, and 
Pinckney. Its opponents had also some bright names in their ranks : 
Gaston, Pickering, Randolph, and Webster. With the latter stood 
Mr. Hardin. Mr. Clay had opposed chartering the bank in 1811 ; so 
had Kentucky, and so had Mr. Hardin. The latter was, at the time, 
a member of the State Legislature, and that body had instructed the 
Kentucky Senators at Washington to vote against the charter, 
because of its unconstitutionality. Unconstitutionality was the 
ground of Mr. Clay's opposition at that time. He charged that the 
friends of the measure ' ' sought for some vagrant power in the Consti- 
tution to authorize it" — a form of expression retorted upon him in the 
debates of 1816. Mr. Clay, like Mr. Madison, had, in 18 16, changed 
his opinion, but Mr. Hardin had not. The latter made a speech 
during the session on the subject, but it was never reported. Twenty 
years later, when Mr. Hardin had also modified his views, and was 
advocating the re-charter of the bank, Francis P. Blair, editor of the 
Globe, glided into the House "looking," said Mr. Hardin, "like 
the ghost of famine," and threatened that he would republish the 
speech of 18 16. Doubtless he would have done so, had a copy 
existed. The allusions in this speech to Mr. Clay, as preserved by 



mr. hardin's best speech. 63 

tradition, were exceedingly caustic. Mr. Clay's inconsistency afforded 
an opportunity which the most unaggressive would have let slip with 
reluctance. To Mr. Hardin it was irresistible. In what manner the 
occasion was improved is left to conjecture. The report says little 
more than that he "delivered his views at length." Randolph not 
only endorsed the speaker's views, but having an antipathy to Clay, 
Hardin's assault on the latter was far from disagreeable. 

"Hardin is like a kitchen-knife whetted on a brick," said Ran- 
dolph, "he cuts roughly, but cuts deep." The bill passed, but the 
majority in the House, on its final passage, was only nine. The Ken- 
tucky delegation were evenly divided. 
Says General Preston : 

"I once asked Mr. Hardin which he considered die best speech of his 
life. He said that, so far as he could himself be a judge on such a subject, 
it was one he made in reply to Mr. Clay in the House of Representatives. 
Against the measure chartering the United States Bank Mr. Hardin had spo- 
ken and voted in opposition to his party friends who followed Mr. Clay, who 
favored it. After the vote, Mr. Clay indulged in a heated phillipic against 
Mr. Hardin, charging him with desertion of his party friends. This charge 
of Mr. Clay produced a great effect on the House, and he determined to 
give the speech such a reply as it deserved. He said he feigned to be more 
humiliated and pained than language could express, and indulged, when he 
came to speak, in many apologies that he did not feel ; and having thus pro- 
pitiated the House and obtained its pity— which he said was necessary to get 
a good foothold against Clay, not for purposes of invective, but of ridicule- 
having achieved this, he then went into the question by what right Mr. 
Clay constituted himself the speaker's censor or that of any other member 
of the House. He said that if that were a just title perhaps the Pinckneys, 
the Randolphs, and others might claim precedence over the fiddler of the 
Hanover slashes.* He might doubt, in case of contest, whether he ought 
to award precedence to the member of the Fayette district. At this point 
both sides of the House broke into laughter, to Mr. Clay's intense astonish- 
ment. 

" Finding that he had obtained the favor of the House, he advanced fur- 
ther, and then acknowledged that Mr. Clay was the head man of both Houses 
of Congress. He made this acknowledgment, he said, in order to place his 
loyalty beyond doubt. He then approached the central question, which was 
whether the measure pending was a test of party fidelity. This he treated 
in a free and bold way, citing Mr. Clay's invocations to independence of 
thought in acting upon the highest measures. He spoke of how much he 
admired Mr. Clay for his courage on many occasions, alluding among other 
things to his mission to England and his course in regard to the Newfound- 

*Mr. Clay was an accomplished performer on the violin. 



64 BEN HARDIN. 

land fisheries and the mouths of the Mississippi, and then he left it to the 
sense of justice of the House if one who was as devoted as himself, who, 
with the rest of his followers from Kentucky, knew nothing but to vote on 
all cardinal questions as Mr. Clay dictated, might not claim the right to vote 
as he thought fit on a matter not involving party principles without having his 
loyalty questioned. He would not appeal to the justice of the House alone, 
but to that magnanimity for which the gentlemen had always been distin- 
guished, to allow him a little cooling time until the next day, at least, and he 
hoped that Mr. Clay would then ask a reconsideration of the matter, so as to 
allow him a chance to still prove himself loyal by changing his vote.* 

" He had a great ovation at the end of his speech, particularly from the 
opposite party; but his friends advised him not to allow his remarks to be 
published, and they were accordingly suppressed. Mr. Clay became so 
enraged that he left the house." 

There was a bill introduced by Colonel R. M. Johnson this session, 
commonly known afterward as the "Compensation Law." Thereto- 
fore members of Congress had received for their services, besides 
mileage, six dollars per diem. The bill referred to changed this mode 
of compensation to fifteen hundred dollars per annum. The chief 
argument for the bill was that six dollars per day were inadequate, yet 
where the session was protracted members were charged with doing 
so to obtain their per diem. The measure met with but little out- 
spoken opposition, and was made a law. All the Kentucky delega- 
tion voted for it save Mr. Desha, who voted nay. This simple story, 
like many another, has a sequel which will be related in another 
chapter. 

*This is not meant for a substantial report, but merely a specimen of the tone of his remarks. 



MUCH ADO ABOUT NOTHING. 6$ 



CHAPTER VII. 

AN OLD-TIME SALARY GRAB. 

FEW congressmen were ever more active, efficient, and influential, 
during their first session, than had been Mr. Hardin. He had 
not been restrained by unfamiliarity with parliamentary rules. While 
not indulging long speeches, he had expressed his views on all proper 
occasions forcibly and perspicuously. He had acted on the principle 
that it was his right and duty to promote good, and defeat bad legis- 
lation, and that he should be no mute or idle spectator of its progress. 
He had made himself felt by Clay as an opponent— by Randolph as a 
friend. He had demonstrated signal ability in the business of legis- 
lation, and had taken high rank in Congress when that body, accord- 
ing to Mr. Webster, was at its best in the way of talent* 

The first session of the Fourteenth Congress adjourned April 30, 
18 16. Mr. Hardin journeyed homeward, conscious that he had made 
a faithful effort to do his whole duty. The newspapers had reported 
congressional proceedings, as the session progressed, and reports 
showed he had been active. He had been accustomed to profes- 
sional success, and, thus far, his brief political career had been 
fortunate. Under these circumstances, it was but natural that he 
should have anticipated the welcome and approving plaudits of his 
constituents. Indeed, he felt entitled to no less. But, alas ! for 
human hopes, this reasonable expectation was dismally disappointed. 
On his arrival at home, Mr. Hardin found Kentucky, in common 
with the whole country, suffering from a fit of consuming wrath, over 
the passage of the Compensation Law. The center of this excitement 
was Kentucky. George D. Prentice said the "demagogues" had 
stirred this tempest. Doubtless, they had contributed their mite, but 
it was denounced everywhere, and by all classes. It was the topic of 
conversation in private circles, and the theme of harangue in popular- 
assemblies. The argument went nem. con. The feeling grew from 
day to day, and from week to week, until, at length, popular exasper- 
ation arose to such a height (if we may trust the hyperbole of Mr. 
Prentice) that the "habitual and long-cherish ed reverence for their 

-Daniel Webster, by Henry Cabot Lodge, page 64. 

5 



66 BEN HARDIN. 

favorite Clay seemed half forgotten by the people, and there was 
every probability that he would be cast down like a worshiped idol, 
when its votary has found that the tale of its divinity is but a fable."* 
This was further illustrated during the heated congressional race that 
ensued between Clay and Pope ("one-armed" John Pope), by the 
remark of an Irish voter : " For whom, Jerry, do you mean to vote," 
he was asked. With a shrewd look, he replied: " Faix an' sure, 
docthur, I mane to vote for the man who can't put more nor one 
hand into the threasury." What seems to modern observation " much 
ado about nothing" presented a different aspect in 1816. 

The purchasing power of money was far greater than now. The 
popular estimate of the value of official services was extremely low. 
There was an idea afloat that patriotism ought to actuate those 
charged with legislation rather than motives of gain. The members 
of the Kentucky Legislature then received but $1 per day besides 
mileage. The judges of the Court of Appeals had received an annual 
salary not greater than $1,000 prior to 18 15. It was easy for selfish 
aspirants to make a strong point against the compensation bill from 
such premises. Mr. Hardin had not only voted for the obnoxious 
bill, but approved it in face of all opposition. In his judgment it was 
both a just and wise law. But to stem the tide against it and the 
unpopularity of having voted for it was difficult, and the result uncer- 
tain. So he discreetly declined standing for re-election. Only two 
of those who had voted for it were returned — Henry Clay (after a hard 
contest) and Colonel R. M. Johnson. Mr. Desha, who had voted 
against it, was again elected. The remaining seven of the delegation, 
including Mr. Hardin, succumbed to the inevitable. "Colonel John- 
son took the stump and made a resolute effort to justify the measure, 
but he soon found it was all in vain. It was amusing to hear the col- 
onel, who was not an eloquent man, make a passionate speech in favor 
of the measure, and conclude by promising to vote for its repeal, 
because such was the will of the people." So wrote Amos Kendall, 
who erroneously stated that every Kentucky member who had voted 
for the law was defeated except Clay and Johnson. Hardin was not 
a candidate — neither was his colleague, Alney McLean.f 

But for his unlucky support of this law Mr. Hardin would doubt- 
less have been re-elected, and thus have enjoyed the advantage of con- 
tinuous service, which frequency of terms, with intervals, can never 
bestow. What with these advantages he might have accomplished 
for himself and his country it is needless to conjecture. It was unfort- 

* Henry Clay, by George D. Prentice, page 124. t Autobiography, page 178. 



ON HORSEBACK TO WASHINGTON. 



6 7 



unate for his career that it was thus interrupted so soon after it had 
auspiciously begun. 

The vacation passed and Mr. Hardin again set out for Washington 
to attend the second session of the Fourteenth Congress. He had 
concluded to visit his birthplace in Pennsylvania, which did not require 
much diversion from his direct route. Before starting from home he 
had equipped himself with a good horse and saddle-bags, carrying in 
the latter such wardrobe as the exigencies of society demanded of old- 
time Congressmen. The journey was a long one, and, as it proved in 
this instance, a lonesome one. Much of his road was rough and 
through a wilderness where he esteemed himself fortunate in finding 
lodging places at nightfall. As he passed the Virginia line the country 
was better populated, and occasionally the tedium of his journey was 
interrupted by the company of a traveler going his way. One even- 




" Which is the Cheapest Tavern?" 

ing, as his road was passing the eastern declivities of the Blue Ridge, 
he approached a town where he proposed to rest for the night. 
Behind him he heard the sound of horses' hoofs. In a few minutes 
three dapper-looking young gentlemen mounted on spirited horses 
overtook him. From their dress, outfit, and manner he readily recog- 
nized them as belonging to the Virginia gentry. They exchanged the 
salutations of the road, and Mr. Hardin discovered that they— as was 
characteristic of this class — were sprightly, good humored, and satisfied 



68 BEN HARDIN. 

with themselves on all points. On the other hand the young men, 
from a certain air of careless awkwardness and the unpretentious char- 
acter of his trappings, set Mr. Hardin down as a country bumpkin. But 
few words passed before he discovered how he was esteemed by his 
young companions, and he thereupon resolved to act the part attrib- 
uted to him. He soon learned from them that they were on their 
way to the town near by ; that a debating society would meet there 
that evening, and that they were to participate, and, in fact, were 
leaders in the debate. He inquired the question to be debated. It 
proved to be one with which he was entirely familiar, having had 
occasion frequently to debate it in his congressional canvass. He was 
asked if he ever made speeches. He replied that he had spoken in 
debating societies, but that they never debated questions like that in 
Kentucky where he lived. "Which produced the most happiness, 
pursuit or possession," and the like, he said, were the kind of ques- 
tions debated in the West. From his artless questions and answers 
the young gentlemen concluded that they had found a character who 
would afford some amusement if he could be induced to speak at the 
debating society. After having made several awkward excuses, he 
yielded to solicitation and agreed to speak if allowed to come last. 
He said he could "pick up some points from other speakers and be 
sort o' prepared." 

He asked how many taverns there were in the town, and which 
was the cheapest. His new friends told him there were two, but that 
they would stop at the better one, and he must go with them — which 
under hospitable compulsion he did. The young men were con- 
vinced they had encountered an innocent abroad, and privately gave 
out in town on their arrival that there was fun in prospect. A larger 
crowd than usual gathered that evening at the debating hall. Expec- 
tation was on tip-toe. The young gentlemen escorted their guest 
( for such they now esteemed him ) to the hall, and ostentatiously 
seated him where the audience could have a fair view of him. Mr. 
Hardin was more artless than ever. The audience made no attempt 
to conceal its amusement. The debate in due time began. Mr. 
Hardin's young friends of the road made speeches, and as they had 
carefully prepared for the occasion, they acquitted themselves with 
credit. Finally it came to his time. 

He had managed to tell his name in such way that it had not been 
understood. In fact, his name had been a matter of indifference 
to his new friends. " At that moment," said Hardin long afterward, 



THE VIRGINIA DEBATING SOCIETY. 69 

" I never felt in more elegant trim for speaking in all my life." He 
arose with an assumed awkwardness that caused a titter to go around. 
He slowly straightened his stalwart form — assumed an air of dignity 
that completely changed his appearance — his eye lightened with the 
fires of intelligence, and in the modulated voice of a trained orator he 
began his speech. He illustrated all the art and power of oratory. 
Argument, pathetic eloquence, wit, invective, and ridicule came in 
full and overwhelming tide. He metaphorically tore his roadside 
acquaintances limb from limb. He ridiculed them ; he dissected 
them. The audience was at first astounded. They questioned the 
sense of sight and hearing. But as the situation dawned upon them 
they were carried away by enthusiasm. They laughed and wept and 
stamped and s-houted. He at last concluded by informing the audi- 
ence that he had truly said he was from Kentucky ; that his home 
was at Bardstown, which, on account of its refinement and learning, 
was sometimes called the Athens of the West — and that he was a 
member of Congress and then on his journey to Washington City. 
The young gentlemen who had originated the jest meantime had 
slipped out and made good their retreat. Next morning a large and 
admiring crowd gathered at the tavern to speak to him and bid him 
good-bye. 

Although negligent as to dress, he was not so as to his lodgings, 
notwithstanding his pretense to the Virginians of seeking a cheap 
hotel. He was always the patron of the best hotels, and did not lack- 
appreciation of tasteful and comfortable surroundings. While reputed 
economical of expenditure, he had a contempt for niggardliness arising 
from such a sentiment. His stopping places in Washington were 
selected with an eye to what propriety required of the representative 
of an intelligent and respectable constituency, no less than for that 
consideration a gentleman owes to himself. Thus he had better 
opportunities for social contact with the more intelligent of his col- 
leagues — with many whose names have adorned the history of the 
country, and they in turn came to appreciate him. 

He was present at the opening of the session. Mr. Clay, recov- 
ered from his summer's canvass, was at his post. The Kentucky del- 
egation of the first session was in attendance, save James Clark. He 
had resigned his seat for a circuit judgeship. Thomas Fletcher had 
been chosen to fill the vacancy. General Fletcher had been a mem- 
ber of the Kentucky House of Representatives for Montgomery 
county, in 1803. l8 °5. and l8o6 > respectively. Residing in that ter- 



JO BEN HARDIN. 

ritory out of which Bath was subsequently carved, he represented it 
in 1817, 1820, 1821, and 1825. 

It was during his last term in the State Legislature that Simon 
Kenton visited Frankfort. Seventy years old, poor, in tattered gar- 
ments, mounted on a poor horse, the old pioneer entered the State 
capital a stranger. He came seeking from the State, that he had 
assisted so largely in reclaiming from the Indians, a release of some 
of his mountain lands from taxes. While wandering about the 
streets, a desolate, lonely old man, General Fletcher met and knew 
him. He lost no time in having him decently clothed and kindly 
entertained. Kenton quickly became the object of great and hearty 
attention. He was taken to the capitol, while the Legislature was in 
session, and placed in the speaker's chair, and introduced as the 
second great adventurer of the West to a crowded assembly of legis- 
lators, judges, officers of government, and citizens. The simple- 
hearted old man called it the "proudest day of his life." His lands, 
it is needless to observe, were released. 

General Fletchers congressional career ended with the Fourteenth 
Congress. Mr. Hardin, at this session, was appointed a member 
of the standing committee on claims, and of the select committee on a 
uniform national currency. In the course of the session, he took part 
in debates concerning a resolution to repeal the duties on licenses to 
distillers, on the motion to suspend the act concerning property lost in 
the late war, on the bill to amend that act, on the report concerning 
military bounty lands, and on the contested elections of the Missouri 
delegates. But the most prominent subject of the session was the 
repeal of the Compensation law. "Scarcely," said Mr. Hulbert, 
' ' had the doors of Congress been thrown open, at the commencement 
of the session, when motions were made in both Houses for the repeal 
of the Compensation act. Why," said he, "this extraordinary 
haste ? " He thought the clamor against the law was made by news- 
papers, and that it was but the voice of party spirit, faction, and 
misrepresentation. A majority of Congress expressly or impliedly 
dissented from this view, conceding, in effect, that the popular voice 
was against the law. The chief matter of debate concerned the ques- 
tion as to the right of the constituent to instruct his representative, 
and the duty of the latter to obey. 

Nine days were consumed in this discussion. Of the Kentucky del- 
egation, Messrs. Desha, Clay, Fletcher, McLean, Hardin, and Taul 
made lengthy speeches. Mr. Ormsby was absent during the session, 



SPEECH ON THE COMPENSATION LAW. J I 

and Messrs. McKee and Sharpe remained silent. Mr. Randolph was 
on his feet more frequently than any one else, attacking those who 
had voted against the bill for receiving the salary it provided, and 
those who had voted for it for favoring its repeal. He insisted, and 
offered an amendment to the effect, that, if repealed, members should 
refund the sums received by them in excess of former compensation. 
Mr. Ross, of Pennsylvania, complained of a supreme court judge of 
that State who had drunk a toast with the sentiment : "The Compen- 
sation law — the receiver is as bad as the thief." Randolph also said, 
in debate, that, if he had voted against the Compensation law, he 
would as soon have been caught with his hand in his neighbor's pocket 
as to have taken the money. So, the little prudent minority, who 
had voted against the law at the former session, were made exceedingly 
uncomfortable. Randolph was in his element, making it unpleasantly 
warm for everybody. He thus was a conspicuous mark, and was well 
abused. He quoted, not inaptly, in one of his retorts: "The little 
dogs and all — Tray, Blanche, and Sweetheart — see, they bark at me." 
Mr. Barbour, of Virginia, with pallid face, wished to know if, by this 
quotation, he alluded to him. Randolph contemptuously responded 
that "he believed he was entitled to the floor,'' and, thereupon, pro- 
ceeded to say other things amusing to modern readers, but anything 
else than amusing to his honorable colleagues. 

The remarks of Mr. Hardin are reported as follows : 
" Mr. Hardin said he had been on the strong side of the question at the 
last session, having voted in favor of the act now proposed to be repealed, 
and he believed he should be on the strong side, also, at the present session, 
being one of those who intended to vote for the repeal of the law. To show 
his motives for so doing, he said he should offer a few observations, lest he 
should be branded with the imputation of that kind of political prudence 
which appeared to characterize the present day, and which always selected 
the strongest side. He was sorry to hear it said to-day that this subject was 
rather a mirthful one than otherwise. For his part, Mr. Hardin said, from 
the time he had voted for the law at the last session he had never felt very 
merry on the subject. He had felt it a misfortune that he, in obeying the 
dictates of his own judgment, had been one of those who had incurred the 
displeasure of the American people, and felt the necessity of humbling him- 
self to obey their will. There was also another reason why he thought the 
passage of that law by Congress unfortunate, because it had afforded to dem- 
agogues throughout the nation an opportunity to ride into every office in the 
Government; because he was afraid the great hostility shown to that act 
would introduce a four-pence-half-penny mode of doing business. On that 



72 



BEN HARDIN. 



score, Mr. Hardin said, he did not feel very merry, though he was certainly 
given to pleasantry sometimes ; perhaps not so much so, however, as the gen- 
tleman before him (Mr. Ross), who could even be merry in misfortune. 

"Mr. Hardin said he was sorry that any unpleasant feeling had been 
excited, that any acrimony had arisen in the House. He was fully per- 
suaded that those who voted for or against the bill last year had equally acted 
from honorable motives. After it had passed, would it not have been a mere 
affectation of delicacy for those who voted against the law to have refused to 
take the money ? If they had done so, Mr. Hardin said, he should not have 
thought they were sincere. He had never certainly viewed the conduct of 
gentlemen who voted against the bill, yet took the money, as at all censura- 
ble. But there was one remark he could not help making, which he hoped 
no gentleman would take to himself — that when the obnoxious question was 
in agitation last year, those opposed to it were as silent as possible ; the grave 
is not more silent than they. The bill had not many enemies, and was 
openly opposed by very few. Mr. Hardin said he had heard on the ques- 
tion for the engrossment of that bill for a third reading but few nays, and 
when the yeas and nays were required on that question but fifteen supported 
the call. What was the inference? That few, if any, more than those fif- 
teen were opposed to that bill. On the next day, when the yeas and nays 
were called, there were sixty-seven to sixty-nine opposed to the passage of 
the bill ! Now, if there was any gentleman in this House — he did not say 
there was ; he hoped there was not one — who secretly wished that bill to pass, 
though he voted against it, he deserved censure. He did not know of any 
such gentleman, and, he repeated, he hoped there was none ; but he could 
not help wishing that much the same zeal had been manifested in opposing 
this bill at the last session as in condemning it now, and perhaps he and oth- 
ers would not have had to pay the forfeit they had incurred. My time of trial, 
said Mr. Hardin, is over. I honorably declined a re-election because, I beg 
you to understand, I could not have been elected without going the rounds 
and begging pardon for what I do not consider to have been incorrect. 

" He could not consent, he said, to go around begging the people to give 
him a seat in this House. He said he had never considered fifteen hundred 
dollars for the yearly services of a member of Congress as a quid pro quo. 
The men of talents of our country, Mr. Hardin said, were generally from 
twenty-five to forty years of age ; new men, born to inherit no fortune ; men 
who have worked their way into society, by dint of their own talents and 
exertions. How could any such man occupy a seat here, unless he received 
not only enough to defray his expenses, and enable him to live as a gentle- 
man should, but enough, also, to support his family at home, without break- 
ing in upon that small capital he had laid up ? Many men, it was true, came 
here, screwed themselves up in holes like penitentiary cells, and, on six 
dollars a day, saved more while here than they could make anywhere else. 



SPEECH ON THE COMPENSATION LAW. 73 

But men of talents, who came here for a flyer for two or four years, can not 
support themselves on it as they have been used to live at home. As to the 
idea of patriotism being a sufficient motive to come here, it was absurd. 
Patriotism is that which urges a man to serve his country without expecta- 
tion of personal benefit or reward. But, Mr. Hardin asked, did the gentle- 
man from Kentucky believe there was a single man who ever came to Con- 
gress who did not come without some other motive than that for the gratifi- 
cation of his own vanity, to have his ears tingle with the ring of greatness, 
or for the advancement of his own interest? Such language as that of the 
gentleman, who considered patriotism the leading and sufficient motive for 
bringing men here, sounds handsomely, cuts a good figure here or in a news- 
paper, but there is not much substance in it. No, Mr. Hardin said, it was 
not patriotism that would bring men of talents here, to the great prejudice 
of their private interests. He agreed with gentlemen that this House ought 
not to be the mere stepping-stone to executive offices ; not a theater on which 
a man should show his eloquence a day or two, and then go off in a lucra- 
tive embassy to Europe or elsewhere. A seat in this House, said he, was in 
theory, and ought to be in practice, the most honorable of any station in the 
Government, for it is held at the will of the people, and not of the Presi- 
dent. Mr. Hardin did not go further into the reasons which had induced 
him at the last session to vote for the compensation law, since the subject 
had been fully illustrated in the report of the select committee, on every 
topic but that to which he referred, respecting the class of the people among 
whom the talents of the country were to be found. 

" Mr. Hardin then proceeded to assign briefly the reasons which influ- 
enced his vote to repeal the law of the last session. He did not, he said, 
allow to the right of instruction that latitude for which some gentlemen con- 
tended ; but with the will, not only of his constituents, but of the whole 
people of the United States, he thought himself bound, in the present case, 
to comply. He agreed, whether this will was made known in the form 
of regular instruction or in any other way or shape, it was equally obligatory. 
He could not agree with the gentleman from Virginia that a Representative 
is, from the term of his office, bound to obey the will of his constituents. 
A member of this House, Mr. Hardin said, was to represent the particular 
interests of the people who send him to Congress, whenever those interests 
are in question. Having done that, he is to assume the more expanded and 
important character of a legislator for the nation, and consult the general 
good. All general laws ought to be acted on with a view to that which pro- 
duces the most general good. Am I, said Mr. Hardin, to vote for a law to 
sacrifice the interests of the whole nation, because it will benefit my imme- 
diate constituents? No; I represent my constituents on particular topics, 
and on general questions consider what the general good requires. Every 
member of this House is the representative of his constituents ; but he is at 



74 BEN HARDIN. 

the same time a legislator for the nation. I do solemnly protest, said he, 
against legislative instructions — I detest them more than Adam did the ser- 
pent. They are the greatest bane that ever crept into a well-regulated gov- 
ernment. It is an encroachment by the States, in their corporate capacity, 
on the rights of this House. The members of this House, with the Senators, 
Mr. Hardin said, made laws to operate on the people, not on the States in 
their sovereign capacity, and the States, therefore, had nothing to do with 
instructions. These had originated, he said, he had no doubt, in a wish to 
screen some favorite man here who had been doubtful whether his acts were 
popular or not, from responsibility therefor to the people. But the people 
throughout the American continent seem to have expressed their decided 
disapprobation of the law now proposed to be repealed. Hence, in retrac- 
ing his steps he should not only follow the will of his constituents, but the 
voice of the American people. For, he said, if the will of the American 
people was contrary to that of his constituents, he should obey that will, 
believing it his duty to legislate for the nation. 

" Mr. Hardin said he could not agree with his colleague (Mr. Clay) that 
the people were dissatisfied with the manner, and not with the matter, of the 
act of the last session, though such might be sometimes the case in the gen- 
tleman's district. In regard to this law, when in my district I met with a 
sensible man, I conversed with him sensibly; and when I was accosted by 
a furious demagogue, I gave him as good as he sent; and when I came 
across a fool, I laughed at him. I would ask the Speaker (Mr. Clay) one 
question. Does he believe that his constituents, any more than mine, would 
have objected to the manner, if we had fixed our annual compensation at 
five hundred dollars ? Not a man in my district would have taken excep- 
tion to such a change in the mode of compensation, unless he wished to come 
here in my place. Mr. Hardin said he did not believe the present compen- 
sation too high, but he must conform to the views of the people who, he had 
no doubt, wished to see the compensation reinstated in the situation in which 
it stood before the law passed. 

" Mr. Hardin said he felt some little anxiety that this course should be 
taken, not only because it was the will of the people, but because it would 
take a powerful tool from the hands of political demagogues. The perse- 
cuting spirit had been carried by them to great lengths, in regard to this act 
so far, as his colleague (Mr. Johnson) had informed the House, that a man 
in Kentucky had refused to let a young man court his daughter unless he 
would forswear the compensation law. I never heard of this fact before, 
but do not doubt that the honorable gentleman either knows the fact practi- 
cally, or has heard of it. If practically, the old gentleman stood very much 
in his own light, for I do not know how he could have suited his daughter 
better than by promoting instead of preventing the match. But all through 
the State of Kentucky the same spirit prevailed. If a man came into the 



SPEECH ON THE COMPENSATION LAW. 75 

county court to be appointed a constable or surveyor of the road, he entered 
his solemn protest against the compensation law. If a petty demagogue 
wanted to go into the Legislature, he must post up or put in the newspapers 
his protest against it. To deprive such knaves and rascals of any pretense 
under that act, Mr. Hardin said, he would repeal it. Why, some of the new- 
fry that are coming into Congress, he had heard, had declared that they 
would vote for the repeal of the act ; and, if it was not effected, would re- 
serve all their pay over six dollars per day, and at the end of each session 
lay it out in churches and meeting-houses ! 

" It had been said that money had resumed its former value. Not at all, 
he said ; though he hoped Congress would restore something like life to the 
circulating medium before they parted hence. Another argument used in 
favor of the repeal was by a gentleman who, having voted to increase his 
own compensation, could not resist the exorbitant demands of others for an 
increase of their pay. That consideration, he said, did not affect him. If 
it was proper, he would cheerfully increase the compensation of any public 
officer; if not, he would as cheerfully vote against it. The gentleman from 
Maryland (Mr. Wright), who had surely spoken in his best manner and done 
justice to this subject, asked what should be done with the next fry — so Mr. 
Hardin said he called them — he knew no better name for them — with the 
next fry that came into this House. They rode into the House on the law 
of the last session, avarice in their hearts, and patriotism in their mouths ! 
Their patriotism told them they did not want the money, but their avarice 
told them they did. And for them, he said, let them take the six dollars per 
day, or the responsibility of raising it. I am willing to leave no law in exist- 
ence regulating the pay, and to let the next members fix their own compen- 
sation. 

" There was one more reason he assigned which had induced him to con- 
form to the wishes of the people, and vote for the repeal of the law of the 
last session. This House, he said, was the only branch of the Government 
which seemed to have an analogy to the people; the only one which formed 
any counterpoise to the weight of the Executive and other branches ; the 
only barrier against encroachments on the rights of the people, or of the 
States. 

" It was impossible for this House so to act as to retain the confidence of 
the people, unless they obeyed the general will and showed a willingness to 
respect it. But, gentlemen had said, the alleged expressions of public opin- 
ion were mere newspaper slang, the work of newspaper editors, etc. But, 
said Mr. Hardin, he believed that was not a fact. He did most solemnly 
believe that it was the public sentiment. It might have been originally the 
work of demagogues, whose breath had raised one wave, which had produced 
another, until a storm had covered all the popular ocean. But, he said, he 
had no right to reason on the motives or causes of the excitement. A man 



76 BEN HARDIN. 

has no right, when the people are unanimous, to conclude that they are mis- 
taken. He must either comply with their will or resign. For his part, he 
would not knowingly misrepresent the will of his constituents on this floor. 

" Mr. Hardin said he did not agree with the gentleman from Virginia 
(Mr. Randolph), for whom he had always a very high respect, who said that 
he knew not how the gentlemen could vote for the repeal of the law without 
refunding what they had received under the law. Mr. Hardin said he had 
resolved this subject in his mind, and saw no difficulty in it. He had voted 
for the law because he believed it correct. He should vote to repeal it, not 
because he believed he had done wrong, but because of an anxiety to con- 
form to public sentiment, particularly on a matter between a member and 
his constituents. But he would not consent to acknowledge that he had 
cheated the people out of their money, as he should do by voting to refund it. 

"There was nothing dishonorable in keeping it. Besides, the power of 
Congress did not enable them to enforce such a law if they passed it. Was it 
possible for them to pass a valid law taking away from an individual money 
earned under a contract between him and the Government? Could they 
pass a law to take away from the Judges of the Supreme Court the salaries 
which they have received for years past? No. A salary may be destroyed 
prospectively, but you can not take away from a man what he has earned. 
You can not deprive a man by law of a vested right." 

On the final vote as to repeal, one hundred and thirty-eight voted 
yea to twenty- seven nays. All the Kentucky Congressmen voted 
yea. On March 3d the Fourteenth Congress adjourned sine die. For 
the time Mr. Hardin retired from the cares and labors, the responsi- 
bilities and vexations, of official life. He had no cause, however, to 
review his career with dissatisfaction. He had achieved all that a 
reasonable ambition could have hoped. It was his misfortune, not his 
fault, that his action in regard to the compensation bill affected him 
unfavorably. He had but followed the lead of Colonel Richard M. 
Johnson, who was both before and after a favorite of fortune. Of all 
uncertain things nothing is more capricious than popular favor. 



AGAIN IN CONGRESS. 77 



CHAPTER VIII. 

THE COMPROMISE ERA. 

IN 1818 the furor over the "compensation law " having subsided, Mr. 
Hardin was again a candidate for Congress. He had for his oppo- 
nent the late Richard Rudd, a reputable lawyer of Bardstown. Mr. 
Rudd had influential connections throughout the district, and was him- 
self of agreeable and popular manners. Stories are still related about 
Bardstown illustrating the generosity of his character. After a heated 
canvass Mr. Hardin was elected, succeeding Thomas Speed. The first 
session of the Sixteenth Congress began December 6, 18 19. Mr. 
Clay was elected speaker by the flattering vote of one hundred and 
forty-seven to eight scattering. 

Mr. Hardin did not take his seat until the 14th of the month. The 
standing committees having all been appointed before his arrival, his 
work in that direction was confined to special committees and promis- 
cuous services in Committee of the Whole. He had for his colleagues 
from Kentucky Richard C. Anderson, Jr., William Brown, Alney 
McLean, Thomas Metcalfe, Tunstall Quarles, George Robertson, David 
Trimble, David W 7 alker, and the speaker. In the Senate from Ken- 
tucky at that time were Richard M. Johnson and William Logan, the 
latter being succeeded in 1820 by Isham Talbott. Among the list of 
eminent senators at this period, Mr. Benton, in his "Thirty Years' 
View," names Colonel Johnson, and in the "array of distinguished 
talent in the House" after Mr. Clay he mentions Anderson, Trimble, 
Robertson, Hardin, and Metcalfe. 

Richard Clough Anderson, Jr. , was born at Louisville, August 4, 
1788, His father (for whom he was named) was a gallant soldier of 
the Revolution. His mother was a sister of the celebrated General 
George Rogers Clark. He was educated in Virginia, graduated at 
William and Mary College, and studied law under Judge Tucker. He 
returned to Kentucky and began practice, soon attaining high rank. 
He served several years in the State Legislature. In 18 17 he defeated 
Judge Stephen Ormsby for Congress, and in 18 19 was re-elected. He 
was an amiable man and discreet politician. He was the brother of 
General Robert Anderson, of Fort Sumter fame, of ex-Governor 



78 BEN HARDIN. 

Charles Anderson, of Kentucky, and also of the late Larz Anderson, 
^of Cincinnati. 

William Brown was a native of Fauquier county, Virginia, whence 
he emigrated to Kentucky. This session witnessed his first entry into 
Congress, where he proved an active member. 

General Thomas Metcalfe was also born in Fauquier county, Vir- 
ginia, March 20, 1780. He was brought by his parents to Kentucky 
in 1785, settling first in Fayette county, but removing a few years 
afterward to Nicholas. His parents were poor and humble, who sent 
their son to school only long enough to acquire the English rudiments 
and a thirst for knowledge. At sixteen he was apprenticed to a 
stonemason. While learning his trade he devoted his leisure to study. 
At nineteen his father died, casting on him the burden of the family. 
He erected many important buildings in and out of the State, and 
among others in 1803 he worked on that stone court-house at Bards- 
town (still standing) whose walls have echoed the best forensic elo- 
quence ever heard in the West. In 1809 he made his first public 
speech, calling for volunteers to fight the Spaniards. He obtained 
many volunteers, but the Spanish troubles ended peaceably, and they 
were not needed. At six consecutive elections he was chosen to rep- 
resent Nicholas county in the State Legislature. He served in the 
war of 18 12, and the company under his command distinguished 
itself for courage at the battle of Fort Meigs. In 18 19 he was for 
the first time elected to Congress. He was an earnest and forcible 
public speaker, and from this and his trade the people delighted to 
call him " Old Stone-hammer." 

This was the second term Aldney McLean had served with Hardin 
in Congress. 

Tunstall Quarles had been long in public life. He was a member 
of the Kentucky Legislature from Woodford county as early as 1796, 
and from Pulaski in 181 1 and 1812. He entered Congress in 18 17 
and was re-elected in 18 19. 

This was Judge George Robertson's second term of Congressional 
service. 

David Trimble was born in Frederick county, Maryland, about 
1782 — educated at William and Mary college — studied law and emi- 
grated to Kentucky about 1803. He represented Montgomery county 
in the Legislature, and afterward removed to Greenup. He was 
elected to Congress in 1817, and re-elected in 18 19. He was a man 
of integrity — energetic and faithful. 



ADMISSION OF MISSOURI. 79 

David Walker had served the term preceding his election to the 
present Congress — being at that time the successful competitor of the 
celebrated Matthew Lyon. 

The great and exciting question of this, as well as the previous 
session, was that of admitting Missouri as a State of the Union. Its 
admission was resisted by certain Northern Congressmen because its 
constitution recognized and protected slavery. 

On the other hand, it was urged that Congress had no power to 
impose restrictions on a new State, further than to require its form of 
government to be Republican ; and further contended that by the 
treaty of cession of the Louisiana territory from France to the United 
States, the citizens of that territory (of which Missouri was part), 
were guaranteed in their rights of property and personal rights, and 
that included in the former was the right to slaves. The debate on 
these questions was long, animated, and able. The speech delivered 
by Mr. Hardin in the course of the discussion, favoring admission 
(February 4, 1820), was one of the best presentations of that side of 
the question. He insisted that the opponents of the bill sailed under 
false colors — that the pretense that they acted from motives of 
humanity, morality, and religion was but a cloak to conceal the real 
design — political consequence and mastery. "On our side of the 
House," said he, "we are contending not for victory, but struggling 
for our political existence." He discussed the questions involved 
under three leading heads : First, had Congress the power under the 
Constitution of the United States to annex, as an irrevocable condi- 
tion upon the admission of Missouri into the Union, that the State, 
when organized, should prohibit the further introduction of slaves 
within her limits, and emancipate the future increase of all those who 
might be holden in slavery at the time the State government was 
formed ? Second, if Congress had the constitutional power, could it 
be exercised without violating the national faith under the treaty of 
cession from France ? Thirdly, if Congress had the power to impose 
the restriction, and would not violate national faith in so doing, was 
the proposed restriction expedient? He refuted as absurd the idea 
advanced by some of the opponents of admission, that the declara- 
tion of independence of 1776 had emancipated all the slaves in the 
thirteen colonies. He denied that precedents were binding if in vio- 
lation of the Constitution, and argued that the conditions annexed to 
the admission of the former new States were unauthorized, yet, being 
consented to by them, constituted no precedent. In answer to the 



SO BEN HARDIN. 

position that the treaty-making power could not limit the powers of 
Congress, he argued that the terms of cession of the Louisiana terri- 
tory having been recognized by Congress, by paying the price of it 
to the French, the nation was bound by it. 

In the course of his remarks he thus formulated his opinion on the 
nature of the government: 

"I take this proposition to be undeniable ; that were it not for the con- 
tract between the States, which is the Constitution of the United States, that 
the States would be completely sovereign to all intents and purposes, and that 
every power and attribute incidental to, or connected with, sovereignty would 
belong to the States. The proposition is equally incontrovertible that as the 
Government of the United States possessed no sovereignty originally, or even 
existence itself, and being composed entirely of delegated powers from the 
States, that it possesses none of the original attributes of sovereignty, and it 
can do nothing that it is not authorized to do by the Constitution, either by 
an express grant of power or by an implied grant as necessary to carry into 
effect some power already given." 

Some member had claimed authority for the obnoxious restriction, 
under that provision of the Constitution which authorized Congress to 
provide for the general welfare. Mr. Hardin thus replied : 

" Mr. Chairman, I am heartily tired with the continued and repeated 
claims of this General Welfare. When he was but a youth we made him 
considerable presents from time to time at the expense of State rights. When 
he grew to be a man we provided him a handsome marriage portion by giv- 
ing him a bank of thirty-five millions.* He is a great favorite, for even the 
judiciary, who by law is to have no sympathies, has taken him under its 
special care and keeping. It is time we should resist his claims and stop him 
in his high career of universal dominion. In examining, sir, his pretensions, 
for he is like most of our generals in the commencement of the late war — 
we find him only brave, formidable, and dangerous on paper." 

To those who contended that the proposed restriction was author- 
ized under the "necessary powers" of Congress, he thus responded: 

"This doctrine, that Congress can enact any law which it may deem 
needful and necessary for the health and prosperity of the general govern- 
ment is a most dangerous one, and, if persisted in, must lead to the complete 
consolidation of this Government. All men in power are grasping after 
more, and by every means in their reach endeavoring to extend it — pro- 
claiming to the world that power in their hands is harmless, as it respects the 
rights of their fellowmen. It is time, sir, that this plea of necessity for the 
extension of power should be disregarded. I would ask you, Mr. Chair- 
man, to cast your eyes back upon the nations of the world, both ancient and 

"Referring to the United States Bank chartered in 1816. 



a "state" DEFINED. 8 1 

modern, from the formation of the first government under Nimrod, the 
mighty hunter, to the present day, and tell me, has not every encroachment 
upon the civil, political, and religious rights of the people been justified or 
apologized for under this same plea — necessity? The ministers of Great 
Britain plead necessity for the present system of taxation, which now bows 
down to the earth with the heaviest load of oppression the people of that 
country. Bonaparte pleaded necessity for his conscriptions. Even the Sul- 
tan of Turkey, when he takes off the head of one of his subjects, pleads 
necessity. I do assure you, Mr. Chairman, that civilly, morally, politically, 
and religiously a greater tyrant never existed than this same necessity." 

In considering the constitutional provision that Congress may 
admit "new States," Mr. Hardin thus expressed himself as to the 
meaning of the term "State: " 

"The import of the word State, when used by the Constitution, means 
a political association of the people, with just the same sovereignty, and no 
more or less, than is severally possessed by the thirteen old States. For, if 
you give it less than the same rights of self-government, it is neither a State 
in the common acceptation of the word as defined by the laws of nations, 
or of the constitutional meaning of the term. You may call it a territory, 
province, colony, or any other kind of excrescent appendage to the general 
government, or, you may term it a nondescript, but I protest against it being 
called a State. If Congress can call upon Missouri for a surrender of any 
portion of her rights, which are retained by the other States, where is it to 
stop ? to what lengths can it go ? Congress may, in the next place, demand 
of her, or any other candidate for admission, to yield command of the State 
militia, to give up the independence of the judiciary — to surrender all the 
great rights of State government. * * * '■'■'■ * 

" I have now, Mr. Chairman, gone through the first two great divisions 
of this subject in the order I proposed to investigate the,m. Perhaps I have 
been somewhat tedious, but I could not well say less. Sir, the manner in 
which this nation seems divided upon this subject convinces me of one thing 
that I have long suspected to be true, that our opinions, upon all that variety 
of subjects upon which we, in the course of our lives, are called upon to 
decide, are the result of affections and passions, and that judgment has no 
concern therein. Upon this occasion, we see this opinion fully illustrated; 
because men, distinguished both for integrity and talents, are to be found on 
each side ; and the line that divides the parties is a local one. But, sir, the 
unwillingness manifested by the opposite side of the House to adjust and 
settle this dispute, and prevent an explosion that must shake the American 
world to its center, induces me to believe that their judgments are warped 
by a passion, in this case, which may be denominated an insatiable thirst 
after power — an unwarrantable lust of dominion." 

6 



82 BEN HARDIN. 

Mr. Hardin suggested a mode of settling the controversy, which 
some three weeks later was adopted and became, in fact, the famous 
Missouri Compromise : 

" It strikes me, Mr. Chairman, that this matter can be settled with great 
facility, if each party be so disposed, and neither give up any point in this 
question which may be called principle. Can it not be done by permitting 
Missouri to go into the Union without the restriction, and then draw a line 
from the western boundary of the proposed State of Missouri due west to 
the Pacific — north of the line prohibiting slavery, and south permitting it?" 

Mr. Clay's biographers have placed his early claim for statesman- 
ship largely on his settlement of the Missouri question. He undoubt- 
edly did his country a great service in that affair. In adjusting the 
equities of fame, however, it should not be overlooked that Mr. Har- 
din had already suggested the plan, which only awaited execution. 
Earnestly and forcibly, in concluding his speech, did Mr. Hardin urge 
the adoption of his proposed plan of settlement. 

"I have but few words more, Mr. Chairman, and then I am done. I 
call upon the gentlemen from both sides of this House to tell me what is to 
be the consequence if this question be not settled in some way this session? 
I may be asked, how is that to be done? I answer, by a compromise, and 
in no other way. Can either party be so vain as to expect a victory? 
Behold! and see how this nation is divided — eleven States against eleven; a 
small majority in this House in favor of the amendment, a small one in the 
Senate against it, and the Cabinet perhaps not unanimous. In this state of 
public sentiment the bill falls, and Missouri is not permitted to become a 
member of the Union. Her claims are just and well founded, but we have 
refused to recognize them, and turn a deaf ear to her petitions from time to 
time; not only that, but manifest a strong disposition not even to allow her 
citizens the rights of self-government, the birthright of all Americans. 

"The flame of '76 may burst out. They call a convention, form a con- 
stitution agreeably to their own ideas of the best practicable mode of obtain- 
ing happiness. They disclaim their territorial vassalage, and set up for 
themselves. Are we to drive them to submission at the point of the bay- 
onet, because, being citizens of the United States, they claim the high desti- 
nies of free-born men? If the bayonet is the policy, who will wield it? Not 
the Southern, Western, or Middle States; for the hearts of their people are 
with them; and, ten chances to one, if arms, the last argument of nations, 
are resorted to, they will assist and aid them. This dispute is like no other 
that ever came into this House, that was ever before the legislative body of 
this nation. Party spirit, I know, has at times run high, but the great dan- 
ger from this question, as it relates to the safety and integrity of the Union, 



APPEAL FOR COMPROMISE. 83 

is this, that it is not the same State divided into parties; it is not the States in 
the same section of the Union divided against each other. It is the North 
and East against the South and West. It is a great geographical line that 
separates the contending parties. And those parties, when so equally divided, 
shake mighty empires to their center, and break up the foundations of the 
great deep, that sooner or later, if not settled, will rend in twain this temple 
of liberty from the top to the bottom. My friends reply to me and say, how 
can you compromise ? how can you surrender principle ? It strikes me, Mr. 
Chairman, that this matter can be settled with great facility, if each party be 
so disposed, and neither give up any point in this question which may be 
called principle. Can it not be done by permitting Missouri to go into the 
Union without the restriction, and then draw a line from the western bound- 
ary of the proposed State of Missouri, due West, to the Pacific ? North of 
the line prohibit slavery, and South admit it. 

" The principle we contend for is, first, that Congress can not demand a 
surrender of any sovereignty from a new State which is retained by the old 
States. In the proposed compromise this principle will not be violated. 
Next, we say that the faith of the nation is pledged to the people of that 
territory. Neither will this principle be given up, for the territory upon 
which the compromise, as contemplated, is intended to operate, is a wilder- 
ness, no inhabitants, citizens of the United States, living thereon. As it 
respects the gentlemen who are in favor of the present proposed restriction, 
it is no sacrifice of principle if they, finding they can not gain all they con- 
tend for, are content with partial success. I beg them to beware of one 
thing, as they love and revere this Union, not to push matters to extremi- 
ties; for, although they may have a majority on this floor, we will never 
submit at discretion. I call on them to recollect the old proverb, " Beware 
of the desperation of a peaceable man. " No, Mr. Chairman, sooner than 
be delivered over, not to our brethren, either in politics or affection, but to 
a federal party in the North, bound hand and foot, and to have no voice, no 
lot, no part, in this Union, we will burst all the ties and bonds that unite us 
together and stand erect in our own majesty, as did that mighty man of old, 
when Delilah said: 'The Philistines be upon thee, Sampson.' I do, there- 
fore, Mr. Chairman, conjure the gentlemen from every part of the House, 
for and on behalf of this Union, its integrity and indivisibility, not to allow 
party rancor and animosity to arrest it in its rapid march to a point of 
national felicity, glory, and prosperity never known, either in the old or new 
world. Let neither side any longer contend for victory ; for should either 
party succeed, and finally triumph, the pride of victory on one hand, and 
the mortification and humiliation of defeat on the other, will widen the 
breach and prevent a cordial reconciliation. Before this contest is pushed 
to extremities, let us meet each other on this floor half way, and embrace as 
brothers, bury the tomakawk of party warfare, and smoke the pipe of peace." 



84 BEN HARDIN. 

Mr. Anderson delivered a speech on the Missouri question, Feb- 
ruary nth, and excepting him, Clay, and Hardin, no other member 
from Kentucky took part in the debate. On the 22d Mr. Clay pro- 
posed a committee of twenty-three to act jointly with a committee of 
the Senate to consider and report what provision should be adopted 
in regard to Missouri. That committee formulated Mr. Hardin's sug- 
gestion, which was adopted by both Houses, thus for a time restoring 
political peace to a distracted country. 

On March ist Mr. Quarles announced to the House that on that 
morning Major David Walker, of Kentucky, ' ' had exchanged a world 
of cares, of toils and difficulties, for a mansion of bliss," and he there- 
upon offered resolutions that he be buried without pomp or parade, 
and that the House should not adjourn, such being the request of the 
dying Congressman. Mr. Randolph arose, and after some prelimi- 
nary observations offered his views as to the duty of Congress with 
respect to the funerals of its deceased members and others in public 
office. In the course of his remarks he made some interesting state- 
ments. They are given here, not because pertinent to this narrative, 
though quite as relevant as they were in the House on the occasion of 
their delivery, but rather to illustrate the discursive style of speech- 
making in Mr. Hardin's earlier career. Mr. Randolph spoke as 
follows : 

"The first death which took place of a member of this House — and I 
ought well to remember it, for it was one of my nearest relations, the only 
near one left on the maternal side — took place in New York in the month of 
June, 1790, when Congress sat in that city. The House resolved that the 
delegation of Virginia then present (consisting, when full, of only ten mem- 
bers) should be a committee to see performed the last sad offices for the 
deceased. The next day they ' resolved unanimously that the members of this 
House, from a sincere desire of showing every mark of respect due to the 
memory of Theodorick Bland, deceased, late a member thereof, will go in 
mourning for him one month, by the usual mode of wearing crape on the 
left arm.' As the member in question was, if not in affluent, yet in inde- 
pendent, circumstances, it was ordered that a sum equal to his traveling 
expenses, had he lived to return to Virginia, should be allowed for the 
expense of removing him to his last sad home in this world. I mean, sir, 
the traveling allowance was viewed as a fund to which the deceased mem- 
ber's executors might be entitled, and therefore applicable, under the direction 
of his colleagues, to the rites of sepulture. His executors might, if they 
pleased, have removed the body to the family burial-ground. The funeral 
was neither pompous nor expensive. It was what it ought to have been — 



RANDOLPH ON STATE FUNERALS. 85 

decent Christian burial. Other cases had occurred, Mr. Randolph continued, 
which he remembered in Philadelphia — two particularly, of members from 
North Carolina. On those occasions a particular friend of his, who had been 
a member of Congress from the time of the adoption of the constitution by 
North Carolina, was appointed on the committee to make the necessary 
arrangements for interment, in the case of Mr. Burgess, of Edenton, he 
believed, and in that of Mr. Bryan, of Newbern, he was sure, in conjunc- 
tion with a colleague of his (Mr. Thomas Blount), since also gone where all 
flesh must go. On that occasion this rule was also observed. 

•' During the first session of Congress here (the last of Mr. Adams' admin- 
istration), this House lost one of its most valuable members, in the person 
of a gentleman from Georgia (Mr. Jones). In this case the rule was still 
adhered to. But at a succeeding session — the first under the new adminis- 
tration, and the only bad example set at that time, Mr. Randolph regretted 
it the more, as he felt his full share of the responsibility incurred at that time 
— on the death of the delegate from the Territory of Mississippi (Mr. Hunter), 
the rule was departed from ; then, for the first time, was the practice adopted 
of providing a funeral at the public expense, be that expense what it might ; 
and that rule, under which gross abuses have been practiced, has continued 
ever since to be observed, or rather to be abused; and this without any 
change in the accustomed form of attending the funeral and wearing crape 
for a month. Why not, then, in this case, said Mr. Randolph, comply with 
the letter and spirit of the request of the deceased, without departing from 
the established form, and yet get back, if I may so express myself, to first 
principles on this melancholy occasion? Mr. Randolph adverted to a funeral 
of a former Vice-President. To what man does the cause of American 
Independence owe more, with one single exception, than to George Clinton ? 
None ; none, sir. If any man's remains might claim a funeral at the public 
expense, surely it is those of him* whose death bathed a nation in tears. 
Next to that man, or near as any, in the cause of the Revolution, stood 
George Clinton. But a funeral at the public expense ought to be considered 
as the highest public honor which the nation can bestow. Ought it, then, 
to be considered a matter of course that whenever a member of Congress, or 
a Territorial Delegate, or a Vice-President, or even a President of the United 
States shall leave this bustling, sorry world, we shall follow him (perhaps 
nothing loth) to the grave, and the sumptuous funeral be defrayed at the 
public charge ? It was not the money price of which he spoke. Recollect the 
case of the late William Pitt. What was the distinction taken on that occa- 
sion ? And by whom was a public funeral of that great statesman, who for more 
than twenty years had filled the first place in the eyes of Europe, opposed ? 
By a man who I may call, and will call, ultimus Anglorum— by William 
Windham ; by the favorite disciple of Edmund Burke, the fourth, but not 
the least, star in the great constellation of English statesmen that is set for- 

* Washington. 



86 BEN HARDIN. 

ever. It was this — he would pay the debts of this eminent man ; his great 
and disinterested public services deserved it at the hands of the nation ; but 
he would give no unsuccessful statesman, and such he considered Mr. Pitt to 
have been, a funeral at the public expense. Mr. Randolph hoped the House 
would, in the present case, go on in the usual course ; and that while it com- 
plied with the established form, it would, at the same time, comply in such 
a manner as to fulfill the letter and spirit of the request of the deceased." 

A bill was before Congress at this session to extend the charters of 
the banks in the District of Columbia. A majority of the Kentucky 
delegation opposed the measure. Mr. Hardin advocated it in some 
brief remarks. It will be observed that his action was not only con- 
sistent with his previous opposition to the Bank of the United States, 
but in fact grew out of it. The following is an extract from his 
speech on the subject : 

"This motion for postponement was, in fact, nothing but a left-handed 
way of defeating this bill. The consequence of its success would be oppres- 
sion and ruin on a large portion of the people, and inordinate speculations 
would be made, on the other hand, by those who were not willing to give 
their names to the gentleman from Georgia (Mr. Cobb). Men maybe able 
to pay what they owe by selling their property ; but when all are sellers, and 
none are buyers, property must be sacrificed at least fifty per cent, below 
its value; and, in a few years, instead of this city looking like an assemblage 
of ruins, as one gentleman has said of it, we shall hardly be able to find 
where it is. Mr. Hardin said he had not long been acquainted with the 
city, but since he had known it, it had greatly improved, and he hoped before 
long to see as splendid a city as the capital of a commercial and agricultural 
and — as the gentleman from Pennsylvania (Mr. Baldwin) would have it — 
manufacturing country, ought to be. If this were a question, in the first 
instance, whether these banks should be chartered, he should vote against 
it. If it were a question whether a bank should be chartered within the 
United States, he should vote against it. But that was not the question. 
These banks have been chartered, some of them twenty years ; the com- 
merce and the business of the District is predicated on this amount of bank 
capital. If it were abolished, ruin must follow. This capital was not, be 
said, confined to the District, but extended its benefits to the neighboring 
counties of Virginia and Maryland. Capital, he said further, would regulate 
itself; and no apprehension need be entertained that more capital would be 
employed in banking than could be profitably employed. Again, Mr. Har- 
din said he was in favor of rechartering these banks for a political consider- 
ation. He had been opposed to chartering the Bank of the United States ; 
he thought it too great an engine of power — a great mammoth, which, at 
some day or other, would trample under foot the liberties of the country. 



AN ACTIVE AND INFLUENTIAL MEMBER. 8/ 

As long as this was in operation, he would keep in being these banks — 
which Congress had undoubted power to do — within the District of Colum- 
bia ; and, as long as they continued specie payments, they would form a 
sort of counter current to the overwhelming influence of the Bank of the 
United States. Let every other bank in the country be destroyed and we 
are bound hand and foot at the altar of this stupendous institution. There 
was in the charter of the Bank of the United States, he said, a clause pro- 
viding that Congress should not, during its existence, incorporate any new 
bank. Let these banks, then, said Mr. Hardin, go out of existence, and 
the power of counteracting, in any degree, the influence of the Bank of the 
United States has passed out of your hands forever." 

May 15th, the first session of the Sixteenth Congress adjourned. 
The second session convened Monday, November 13th, following. 
Mr. Clay, in a letter to the clerk of the House, resigned the speaker- 
ship. John W. Taylor, of New York, was chosen speaker, on 
Wednesday, the 15th, on the twenty-second ballot, defeating William 
Lowndes, of South Carolina, and Samuel Smith, of Maryland. Mr. 
Quarles, of Kentucky, had resigned in vacation, and Judge Thomas 
Montgomery had been chosen in his stead. Francis Johnson came in 
room of David Walker, deceased. 

Thomas Montgomery was a lawyer by profession, born in Nelson 
county, Virginia, and had been a member of the State Legislature, 
from Lincoln county, in 1811. He was first in Congress in 1813, 
serving one session. He was not again in public life until elected for 
the unexpired term of Mr. Quarles. Francis Johnson was a native 
of Caroline county, Virginia, but, in early life, removed to Kentucky, 
where he became an eminent lawyer. He had represented Warren 
county in the Kentucky Legislature for three sessions, and the Sena- 
torial district one term, and entered Congress now for the first time. 
He proved himself an active, vigilant, and efficient member. 

Mr. Hardin did not reach Washington until December 7th. He 
immediately threw himself into the work of the session, and proved an 
active and influential member. He performed a great amount of 
important committee work, and. no member from Kentucky (save Mr. 
Clay) more frequently took part in debate. Yet, of the many 
speeches he made, not one is preserved. At this session, the Missouri 
question was again discussed. Mr. Brown, of Kentucky, made an 
elaborate speech in favor of repealing the restriction against slavery in 
the Territories embraced in the compromise of the preceding session. 
Other Kentucky congressmen (except Mr. Clay) contented themselves 






88 BEN HARDIN. 

with silently voting- whenever the subject arose. Nothing better 
illustrates the placidity of the session than the zeal and energy mani- 
fested by Mr. Clay to obtain sympathetic expressions in favor of the 
South American republics and the adoption of resolutions asking the 
President to send a minister thither. Congress, with great unanimity, 
expressed its participation with the people of the United States in the 
•deep interest they felt for the success of the Spanish provinces in their 
struggle for liberty. Judge Montgomery was the only one of the 
Kentucky delegation who voted nay, because he did not believe, as 
he said, that his constituents took any interest in the subject. The 
question of sending a minister to the "patriot" governments was 
decided negatively, yet a resolution was adopted to the effect that 
Congress would support the President in their recognition. Against 
this resolution Messrs. Hardin, Montgomery, and Robertson voted in 
opposition to their colleagues. 



A COMET IN ECLIPSE. 89 



CHAPTER IX. 



A POLITICAL CALM. 



THE high position Mr. Hardin had maintained during his official 
service in Congress, the arduous and important duties he had 
performed, and the entire fulfillment of the trust reposed in the repre- 
sentative by the constituent caused a feeling of pardonable pride on 
his part in the retrospect of his career. Forgetting that republics are 
ungrateful, he deluded himself with the hope of meeting, at home, an 
approving constituency. He was of the majority party (so far as 
party lines were defined), and faithful service had been accustomed to 
the reward of re-election as of course. His pleasant anticipations, 
however, had a rude shock. The brilliant John Hayes, of Bards- 
town, then in the full meridian of his remarkable powers, was a can- 
didate for his seat, and had already made a thorough canvass of the 
district. 

A hasty survey of the condition of affairs convinced Mr. Hardin 
that his re-election would cost a struggle. The magnetism of Hayes, 
and his indescribable, persuasive eloquence had drawn the people to 
him in such a way that they were unwilling to give audience to an 
opponent. Still further adding to Mr. Hardin's embarrassment, 
Hayes declined a joint canvass, alleging his lack of sufficient money 
to defray his expenses. To canvass the district alone was an unprom- 
ising task. Mr. Hardin's oratory might have been justly compared to 
that of a fixed star, emitting a uniform and steady light, but that of 
Hayes had a cometary brilliance that paled the glory of all the con- 
stellations. While this was true, Mr. Hardin felt that, in debate, he 
would, at least, be on equal terms; but the trouble was to obtain 
meetings for such a purpose. In this dilemma, Hardin suggested to 
his opponent that he had just arrived from Washington with a great 
part of his salary, and that he would willingly lend him money for his 
expenses. This offer was accepted, and a joint canvass begun. The 
comets out-dazzle the stellar world, yet their glory is ephemeral, 
while the fixed stars shine on through the ages. Hayes' brilliant 
periods and eloquent sentiments, when unchallenged, were omnipotent 
with the people. But, when they gathered again to hear and be 



90 BEN HARDIN. 

charmed, they found their idol confronted by the master of all the arts 
of debate. In the use of logic, invective, wit, humor, and ridicule, 
the eloquent Hayes was sadly overmatched. In the daily debates of 
the canvass, he rapidly lost the advantage he had won. Either from 
disappointment or chagrin, or because of his ungovernable passion for 
drink, he had gained for himself, by the end of the canvass, the repu- 
tation of hopeless, helpless sottishness. The result was the easy 
re-election of Mr. Hardin. 

Mr. Hardin has been criticised for his course toward Hayes at this 
time. The charge has been made by the admirers of Hayes that the 
joint canvass was a mere device, and that the money was furnished 
with foreknowledge that he would weakly use it to disgrace himself. 
This charge is gratuitous, and, like a sword without a guard, dangerous 
to him who uses it. If Hayes was so helpless in the presence of his 
constituency, with every incentive to abstinence and self-control, with 
a little money, what would he have become with the license of the 
national capital and a per diem adequate to the wildest dissipation ? 

Monday, December 3, 1821, began the first session of the Seven- 
teenth Congress. A quorum was present and Mr. Hardin was in his 
seat. The first question was the election of a speaker. 

On the first ballot ex-speaker J. W. Taylor, of New York, received 
sixty votes, Caesar A. Rodney, of Delaware, forty-five, Louis McLane, 
also of Delaware, twenty-nine votes, and Samuel Smith, of Maryland,, 
twenty, while seven votes were scattering. During the seven ballots 
taken the first day, the highest vote received by Mr. Taylor was sev- 
enty-seven, and that by Mr. Rodney seventy-two, and the others less. 
On the day following the balloting was resumed — the same persons 
being voted for, except that the name of Mr. McLane was withdrawn 
and that of Philip P. Barbour, of Virginia, was added to the list. On 
the twelfth ballot, Mr. Barbour received eighty -eight votes to sixty- 
seven for Mr. Taylor, and eighty-eight being one more than necessary 
to a choice, Mr. Barbour was declared elected. The new speaker had 
been in Congress continuously from 1S14. and was a member of a 
distinguished family — one of the oldest and most respected in Virginia 
— to which Mr. Hardin was allied by marriage. When quite a young 
man he had emigrated to Kentucky and begun practicing law, but 
shortly returned to his native State. His talents were of a high order 
— solid, however, rather than showy. He was studious, earnest, can- 
did, laborious, and patient, and in other ways eminently qualified to 
adorn the speaker's chair. 



SOME KENTUCKY STATESMEN. Ql 

While thus accomplished, a story is repeated about him showing 
that he was more distinguished for talents than for piety His son, a 
young physician, in this respect was in marked contrast, being devot- 
edly pious. He had located in another State, where, not long after- 
ward, he was married. Writing to his parents, announcing that event, 
he eulogized his young wife as "a person of great piety." Judge 
Barbour, reading the letter, mistook the word " piety. " " Well, Tom 
has married a woman of great property," said he to his wife. But 
Mrs. Barbour, on reading the letter, replied that it said nothing about 

property. 

"Oh, yes," rejoined the judge, "he says his wife is a 'person of 

great property. 

"That word is 'great piety,' not 'great property.' " 

" Piety ! piety ! " said the judge, " d — n the piety." 

Among the famous names that graced this Congress may be men- 
tioned C. C. Camberling, of New York, James Buchanan and John 
Sergeant, of Pennsylvania, Andrew Stevenson and John Randolph, of 
Virginia, and George McDuffie, of South Carolina. 

Of the Kentucky delegation, the following members of the Sixteenth 
Congress were returned: Messrs. Metcalfe, Montgomery, Francis 
Johnson, and Trimble. The new members were Messrs. Breckin- 
ridge, J. T. Johnson, New, Smith, and Woodson. 

James D. Breckinridge, of Louisville, had served in the State Leg- 
islature in 1 809-10- 1 1, and was prominent as a lawyer. The present 
was his first term in Congress. 

Major John T. Johnson was a lawyer by profession, a native of Scott 
county, and a younger brother of Colonel Richard M. Johnson. He 
had seen service in the war of 181 2, was subsequently a member of 
the Legislature, and with the present session entered upon his con- 
gressional career. 

Anthony New succeeded Alney McLean. He had served two 
former sessions — 1811-13 and 18 17-19. He attended the sessions of 
Congress, though the reported proceedings do not disclose the part he 
took. He was an early settler of that territory now embraced in Todd 
county ; was a member of the Baptist church, and prominent in denom- 
inational affairs. In a letter dated at Shawneetown, July 7, 1827, 
addressed to Governor Ninian Edwards, the writer, General Joseph 
M. Street, thus refers to a speech by Mr. New at Princeton, he being 
at the time a candidate for Congress against Chittenden Lyon and John 
F. Henry : ' ' New's speech was the declamation of a handsome, agree- 



Q2 BEN HARDIN. 

able man, of common capacity, agreeably delivered, and was pleasing 
to many, but there was, in fact, nothing in it — it was entirely a dish 
of elegant flummery, suited tolerably well to the occasion." 

At that time New was an Adams or administration man, and was 
defeated by Lyon. 

Colonel John Speed Smith was born in Kentucky the year it became 
a State. He became a lawyer, settled in Richmond, and rapidly rose 
to prominence. In 1817 he was awhile a candidate for Congress, but 
withdrew. In 18 19 he was again a candidate to succeed George Rob- 
ertson. "On reaching home," said Judge Robertson, referring to this 
period, '• I found John Speed Smith a candidate for my seat ; and, 
although I did not desire a re-election and had so announced, yet 
unwilling to be apparently shoved out, I felt it due to honor to become 
a candidate again. But after canvassing the district a few days Smith 
declined." He was, however, chos*en to the State Legislature at the 
succeeding election.* He was first elected to Congress in 1821. His 
career indicates great energy and force of character. 

Samuel Woodson was clerk of the courts in Jessamine county at one 
time.f Mr. Hardin once referred to meeting him at Richmond in 
1805, where he was practicing as a circuit lawyer. He represented 
Jessamine county in the legislative session of 18 19. The same year 
he was Grand Master of the Masonic fraternity of Kentucky, succeed- 
ing Mr. Clay in that position, and also occupying the latter's seat in 
the Seventeenth Congress. 

The Kentucky delegation were placed on standing committees as 
follows : 

Elections — Mr. Smith. Claims — Mr. Metcalfe. Post-office and 
Post-roads — Francis Johnson. Agriculture — Mr. New. Public Ex- 
penditures — Mr. Montgomery. Manufactures — Mr. Woodson. 

Only six of the ten members were thus honored, and Mr. Hardin 
was not of the six. Although diligent, painstaking, and laborious, 
he delighted in the privileges of a free lance. While a member of 
the majority party in Congress, he had a natural predilection to battle 
on the side of the minority and sympathize with the opposition. He 
resented party domination with much the same spirit that the old- 
time Kentucky militiaman rebelled against military discipline. But 
before the session was over Mr. Hardin was placed on various select 
committees, that on Retrenchment being the most important. So 

* Mr. Collins is mistaken in saying that this was while Martin Hardin lived at Richmond. Mr. Hardin 
had removed to Frankfort before Mr. Smith came to the bar. 

t As late as iSr4 Amos Kendall speaks of his holding that office. 



THE QUESTIONS OF EVERY DECADE. 93 

far as shown by the reported proceedings, no member took a more 
active part, or spoke more frequently. No member from his own 
State approximated the amount of labor he performed. Reports of 
his speeches and informal remarks on the many questions presented are 
exceedingly meager, and do but scant justice to the substance of what 
he said. His pithy style and tone are almost wholly lost. There were 
but few of the more important questions that arose on which he was not 
heard. Among these, the question of apportionment of congress- 
ional representation among the States has as much, or more, interest 
to the modern reader than any other. 

The fourth census having been made in 1820, the questions of 
every decade recurred in the Seventeenth Congress. (1) Of how 
many members shall the House of Representatives consist ? (2) Shall 
the ratio of representation be increased or diminished ? On these 
questions the inclination was for the representatives of the smaller 
States to be arrayed against those of the larger. The former objected 
to a diminution of their numbers, and they were prolific in illogical 
arguments to maintain their position. To prevent diminution, the 
only alternative was an increase in the number of representatives. 
The increase, it was said, would lessen the dangerous influence of 
executive patronage. The larger the body to be bribed, the less 
danger of bribery. Besides, the increase of population demanded 
an increase of representation, in order that the representative might 
be familiar with the interest of his constituent — difficult, or impossi- 
ble, in a numerous constituency. 

Propositions to fix the ratio of representation varied between 
thirty-five thousand and seventy- five thousand. The larger States, 
for the most part, favored a large number. They replied that the rel- 
ative representation of the small States was the same — whether the 
ratio was small or great. It was also argued that too large a body 
would be cumbrous, too expensive, and that, in fact, the hall of the 
House would not hold a large increase on the existing number. These 
are samples of the arguments pro and con. 

Mr. Hardin addressed the House on the apportionment bill to the 
following effect : 

"Mr. Hardin said there were some features in our Government of a 
national and others of a confederated character. Of the former class was 
the operation of the public laws ; of the latter was the election of the Senate. 
It has been a matter of some question to which class belonged the election of 
the representation of this House. He was inclined to believe it appertained 



94 BEN HARDIN. 

to the latter, and the more especially as he found it coupled in the Constitu- 
tion with the subject of apportioning direct taxation among the States, which 
was undoubtedly of the latter description. Indeed, he considered the question 
to have been decided as long ago as 1792, for which he referred to the journal 
of the House, and read from that journal President Washington's message, 
as follows : 

" 'United States, April 5, 1792. 
' ' ' Gentlemen of the House of Representatives : 

" ' I have maturely considered the act passed by the two Houses entitled 
" iVn act for the apportionment of representatives among the several States, 
according to the first enumeration," and I return it to your House, wherein it 
originated, with the following objections : 

"'First: The Constitution has prescribed that representatives shall be 
apportioned among the several States according to their respective numbers, 
and there is no one proportion or divisor which applied to the respective 
numbers of the States will yield the number and allotment of representa- 
tives proposed by the bill. 

' ' ' Second : The Constitution has also provided that the number of repre- 
sentatives shall not exceed one for every thirty thousand, which restriction is, 
by the context, and by fair and .obvious construction, to be applied to the 
separate and respective numbers of the States, and the bill has allotted to 
eight of the States more than one for every thirty thousand. 

<"G. WASHINGTON." 

' ' Mr. Hardin remarked that the practice of the Government had ever 
since corresponded with that decision. So much for the observations of the 
gentleman from Massachusetts (Mr. Reed). In apportioning representation, 
gentlemen had expressed great diversity of opinion. He would agree that 
the representation ought to be sufficiently large to bring into the House the 
wishes, the feelings, and the interests of the people, and at the same time to 
give it sufficient weight and authority to check and counterpoise any over- 
bearing influence of the other branch of the Government. 

' ' Yet there were rules of convenience and inconvenience that ought not 
to be overlooked. There was daily a practical lesson that there were mem- 
bers enough in this House to give information of the interests and concerns 
of the various parts of the Union. He did not wish that the number should 
be so increased as to become unwieldy and unmanageable. When that was 
the case the public business was necessarily protracted, and even the item of 
expense was not to be overlooked. But he thought some convenient num- 
ber — between one hundred and eighty and two hundred and twenty — would 
be proper, and he was not very solicitous respecting the precise limit if those 
extremes were not passed. 

"One argument, on which much reliance seemed to have been placed, 
was that a large number would fill the House in such a manner that the cor- 
rupt stream of executive influence could not flow into it, and that the num- 
bers in the House should be so great that to corrupt a majority would more 



REMARKS ON APPORTIONMENT. 95 

than exhaust the means of the executive. For his part, he should be very 
happy to be assured there was no corrupt stream flowing out of it. But lie- 
did not wish to legislate on that principle. He was unwilling to allow force 
to any argument that was predicated on the position that the members of that 
body were such villains as to be capable of being corrupted ; and the resolutions 
that had both formerly and recently been introduced in the House, purporting 
to guard against such influence by rendering members incapable of holding 
offices until a period of probation after their Congressional term had elapsed, 
had never received his sanction or his vote. Nor did he feel alarmed by the 
apprehensions that seemed to afflict the gentleman from Pennsylvania (Mr. 
Baldwin) that it was necessary to fix the ratio low, so that each State might 
have two members in the House of Representatives, because, if ever Con- 
gress should be called on to elect a President, it would render it more difficult 
for the candidates for that office to buy up the representation from the small 
States. If a man will go into a graveyard to see spirits, he can always dis- 
cern them. 

"There is no difficulty in conjuring up imaginary dangers where many in 
reality exist. It is sometimes a very convenient way of reasoning to carry a 
point ; for he (Mr. Hardin) had known the period when, if it was desired to 
keep up a standing army, an alarm could be sounded of invasion by the 
Emperor of Russia from beyond the Cape of Good Hope. The House had 
heard much exposition of late on the subject of first principles; but it was 
•somewhat remarkable that they were always exactly suited to the interests ot 
that State whose member urged them. But there was much sympathy and 
feeling for the magnanimous State of Rhode Island, and a gentleman from 
Massachusetts (Mr. Baylies) yesterday informed us that that State paid one- 
fifth of the commercial revenue to the United States. He (Mr. Hardin) 
had always understood, however, and he believed it was pretty generally 
-understood, that duties on imports were paid by consumers. And would it 
be pretended that the State of Rhode Island consumed one-fifth of these 
imported articles ? If so, they must wear very fine coats, and drink tea and 
coffee most prodigiously ! The smaller States should recollect that they have 
an equal power in the Senate, and that this was a concession in their favor 
by the larger States, when the Constitution was formed, in the spirit of com- 
promise. They could certainly have but little to complain of to be repre- 
sented according to numbers in this House, if in a co-ordinate branch of the 
Government, a State of eighty-three thousand inhabitants has an equal vote 
with a State having one million three hundred thousand. By lowering the 
ratio you add nothing to the weight of representation from the larger States. 
Power is comparative ; if all were Sampsons no one would be distinguished 
for strength. If all were wealthy, there would be no rich men. And if all 
were orators of the first class, the great orator of Baltimore would not be 
spoken of. He (Mr. Hardin) would be glad to accommodate the State of 






g6 BEN HARDIN. 

Rhode Island, but he would not consent to do it at the expense of filling the 
House with an inconvenient number, and the old States should remember 
that their population will probably remain nearly stationary for the next ten 
years. Yet the new States may perhaps increase some, at least fourfold, 
before the next census, and they will be bound to abide until that time by 
the apportionment which shall now be made." 

The bill fixing forty thousand as the ratio of representation was 
adopted. The Kentucky delegation divided. For the bill were 
Messrs. Breckinridge, Hardin, J. T. Johnson, and Smith; against, 
Messrs. F. Johnson, Metcalfe, and Woodson. 

The first session of the Seventeenth Congress adjourned May 8th, 
and the second session convened December 2, 1822. All the members 
were present the first day of the latter session save Mr. Smith, who 
arrived the following day. Mr. Hardin was placed on the standing 
committee on commerce. Other members of the delegation were 
assigned to standing committees as follows : 

Post-offices, etc., Mr. F. Johnson; Public Expenditures, Mr. Wood- 
son ; Agriculture, Mr. New ; Indian Affairs, Mr. Metcalfe ; Foreign 
Affairs, Mr. Trimble ; Military Affairs, Mr. Smith. 

During this session Mr. Hardin spoke against the bill confirming 
claims to lots in Peoria ; against the bill to incorporate the Naval 
Fraternal Association ; in favor of the bill establishing a road from the 
mouth of the Miami on Lake Erie to the Connecticut Reserve ; and 
also in favor of the resolution of inquiry as to who had suppressed 
parts of a letter accompanying the report of the Secretary of the Treas- 
ury. In the course of the debate on the bill to incorporate the United 
States Naval Fraternal Association for the relief of the families of 
deceased officers, Mr. Hardin expressed some interesting views on the 
subject of corporations, which have lost none of their force by lapse 
of time : 

"It had always struck him, Mr. Hardin said, that a corporation could 
not have any corporate rights out of the limits of the authority of the gov- 
ernment that incorporates it. That was a point, however, which he would 
not press at present. But suppose this bill be constitutional, would it be 
expedient to pass it? The creation of corporations in any well-organized 
government ought to be avoided as long as possible. They are separate and 
distinct from the great body of the people. They are, if he might use the 
expression, like a counter-current in the great stream of legislation, and the 
multiplication of these counter-currents might in time prevent the great 
stream itself from flowing on. 



CLOSE OF THE SEVENTEENTH CONGRESS. 97 

"His own impression had been that the United States ought to avoid 
creating corporations of any description. The ground on which the consti- 
tutionality of the Bank of the United States had been sustained by the 
Supreme Court was, that it was necessary to enable the Government to col- 
lect and disburse the revenue. Had it not been for that, Mr. Hardin said, 
the Bank of the United States would have been declared unconstitutional 
by the Supreme Court. Now, he asked, was the association proposed to be 
incorporated by this bill necessary to the general welfare, or to carry into 
effect any of the delegated powers of Congress ? Not so, Mr. Hardin said. 

"But is it not, he asked, a dangerous principle to incorporate either 
the army or the navy, or any portion of them ? They are formidable 
bodies, to whom it would be dangerous, and, of course, inexpedient, to give 
corporate powers. Supposing the bill to embrace the seamen as well as the 
officers ; it would be but to extend the principle of the bill a little further 
than it goes now. What government has ever done such a thing as it was 
now asked of this Government to do ? No one ; nor did he know that such 
a thing had ever been even proposed in any other country." 

The bill was defeated. 

In concluding this notice of the Seventeenth Congress, brief refer- 
ence will be made to the subsequent career of three of his colleagues, 
who are to be named no more in these pages. 

Francis Johnson continued in the Lower House of Congress until 
1827. He, with Mr. Clay, opposed the election of General Jackson 
in 1824. He was principal counsel for defense in the celebrated trial 
of John U. Waring, for murder of Richardson, at Frankfort, in 1838 
or 1839. 

Judge Thomas Montgomery closed his congressional career with 
the present session, and resumed the practice of his profession, of 
which he was an able member. He was afterward appointed circuit 
judge, in the Stanford district, and died in office, April 2, 1828. 

David Trimble continued in Congress until 1827. After that, he 
engaged in agriculture and manufactures — in the latter extensively — 
contributing largely to their development in the State. He died at 
Trimble's Furnace, Ky. , October 26, 1842. 

Mr. Hardin, in the Constitutional Convention of 1849, thus alluded 
to him : Hardin was opposing a proposition to make the private 
property of all stockholders in corporations liable for corporate debts. 
He said it would interdict corporations in the State. The proposition, 
he said, is nearly as broad as that of David Trimble, when he offered 
a resolution in Congress. "He (Trimble) said he would take the 
world for his theater; that heaven should contribute to his speech; 

7 



98 BEN HARDIN. 

the sun, the moon, and stars as his quarry, and with the indulgence 
of the House he would take a whack at eternity." Mr. Hardin 
insisted that the obnoxious proposition was the broadest whack at 
eternity he ever saw. 

The labors of the session, taking them all in all, were neither 
exciting nor of great importance ; but they were extended to the 
constitutional limit of time, and there — March 3, 1823 — they ended. 

Mr. Hardin was succeeded by his kinsman, Charles A. Wickliffe. 
He did not seek re-election. Why he did not, he afterward thus 
explained, in a general way : "I had the misfortune," said he, "and 
I rather consider it so than otherwise, from time to time to have had 
a seat in Congress ; and I found I could not stand the sacrifice longer 
than for two or four years at a time. Then I had to quit and resort 
again to the practice of the law to repair the loss." 



A REMEDY FOR HARD TIMES. 99 



CHAPTER X 



RELIEF AND ANTI-RELIEF, 



NEITHER the auspicious termination of the war of 1812 nor the 
ensuing tranquillity of national affairs proved unmixed blessings 
to Kentucky. Hard times, very hard times, befell the growing young 
commonwealth. Western trade was yet in embryo. Labor was in 
slight demand, and poorly rewarded. Commodities of all kinds were 
cheap. Markets were distant and difficult of access, and but little 
money circulated. 

In 1807, the first bank in the State, the Bank of Kentucky, had 
been established. In 18 16, the United States Bank had been char- 
tered (against which Mr. Hardin, as a member of Congress, had both 
spoken and voted). It established branches at Lexington and Louis- 
ville. Shippers of produce to New Orleans brought its proceeds 
home partly in molasses, sugar, and coffee, and partly in Spanish 
coin. 

Notwithstanding these facilities for a circulating medium, the 
impression prevailed that hard times resulted because of the limited 
supply of money. 

Gold and silver mines were scarce, unproductive, and distant. 
Banks, however, could be created, and banks could issue money and 
bring better times. Such was popular logic, and the idea was 
encouraged by the practice, but not warned by the experience, of 
continental times. In January, 18 18, the Legislature, by one master 
stroke, chartered forty-six independent banks. All the chief towns 
were thus blessed, or supposed to be blessed, to say nothing of ham- 
lets and small villages. The aggregate capital of these institutions 
was $8,720,000. With the one million dollars capital of the Bank of 
Kentucky and that employed by the branches of the United States 
Bank within the State, it would seem that all complaints about an 
insufficient circulating medium would have been finally hushed, and 
that, if plenty of money secured prosperity, this end was attained. 
But these comprehensive remedies, after all, proved ineffectual. 
Within a year, such of the forty-six banks as were in operation, and 
also the Bank of Kentucky, had suspended specie payment. The 



IOO BEN HARDIN. 

supposed cause was a pressure for specie by the United States Bank. 
In February, 1820, all the independent bank charters were repealed. 
But, in November following, the Bank of the Commonwealth, at 
Frankfort, was chartered, with a branch in every judicial district. It 
was authorized to issue three million dollars of notes. Dr. Sam 
Johnson was accustomed, when borrowing a shilling, to add the con- 
dition " never to be returned." These notes were based on a similar 
financial idea. They were not redeemable. The bank's capital was 
more nominal than real. It shortly took two dollars of its notes to 
represent a dollar in specie. Imagination will serve instead of descrip- 
tion to depict the distress of debtors that ensued. 

Almost every one was in debt, and a large percentage hopelessly 
so. Some idea of the general condition may be gathered from a 
letter, dated Springfield, August 30, 1823, written by John Pope to 
Governor Ninian Edwards, of Illinois, who entertained the idea of 
removing to Kentucky, and buying a farm. The following are ex- 
tracts from that letter: "There are many fine, well-improved farms 
in Kentucky, in good neighborhoods, to be had on good terms and 
long credit, but few such to be exchanged for outlands. They are 
generally mortgaged or the property of the banks. * * * Some 
of the finest farms in the neighborhood of Louisville are substantially 
the property of the banks, and can be had on long credit and on good 
terms." 

Let it not be supposed, however, that the legislative arm was 
idle, in this emergency. It acted with as serene an indifference to all 
constitutional as of all financial principles. December, 18 19, an act 
was passed by the Legislature to suspend, for sixty days, all judicial 
and execution sales. February, 1820, the right of replevin was 
extended from three to twelve months. In cases of imprisonment for 
debt (then an existing remedy in a creditor's favor), prison bounds 
were extended to the limits of each county town. In December, 
1 82 1, imprisonment for debt was entirely abolished. The right of 
replevin was then extended from three months to two years, unless 
the execution creditor endorsed on the writ that notes of the Bank of 
the Commonwealth might be taken in payment. 

How this course of legislation would have culminated, if uninter- 
rupted, can only be conjectured. When it had reached this point, 
it was suddenly arrested by the adverse decision of a circuit judge. 

In a case arising in the Bourbon Circuit Court in 1822, Judge 
James Clark decided the two years' replevin law unconstitutional, on 



THE LEGISLATURE ASSERTS ITS RIGHTS. IOI 

the ground that so far as retroactive it impaired the obligation of con- 
tracts, and thus violated the Constitution of the United States. Wide 
and profound was the sensation produced by this decision, and the 
unlucky judge was regarded as little less than a public enemy. The 
Legislature, having been convened in extra session for another pur- 
pose, rushed to the rescue. May 18, 1822, Mr. Slaughter, member 
for Warren, offered a resolution in the House of Representatives, 
stating in the preamble that Judge James Clark had rendered a decis- 
ion "in contravention of the laws of the Commonwealth," "had 
grossly transcended his judicial authority and disregarded the powers 
of the Legislature." A committee was appointed to inquire into the 
decision of the judge and report. On the 21st the committee reported. 
It had, it said, read Judge Clark's opinion in the case of Williams vs. 
Blair, published in the Western Citizen, of Paris. 

"The principles and doctrines assumed in this opinion," says the 
report, "are incompatible with the constitutional powers of the legis- 
lative department of the Government, subversive of the best interests 
of the people, and calculated in their consequences to disturb the 
tranquillity of the country and to shake public confidence in the insti- 
tutions and measures of the Government, called for by the condition 
and the necessities of the people." Five hundred copies of the report 
were ordered printed and Judge Clark summoned to appear before 
the House and answer to the "charge." On the 27th he made 
answer in writing. He thus apologized or rather explained to the 
affronted Solons: "In pronouncing a law that is incompatible with the 
Constitution to be void, the Judiciary does not assume a superiority 
over the Legislature. It merely affirms the paramount obligation of 
the fundamental rule. It announces only that the will of the people, 
as expressed in their Constitution, is above the will of any of the 
servants of the people. The decision was given after the most mature 
deliberation which I was able to bestow, and from a firm conviction 
of the principles there mentioned, and I must have been not only 
faithless to my conscience, but to the Constitution of the United 
States and the dignity due the judicial office, had I expressed any 
other opinion." 

The response altogether was a manly and convincing paper. It 
did not, however, avert or appease legislative wrath. 

Under the former State Constitution, as now, judges were remov- 
able from office by "address." If two-thirds of each branch of the 
Legislature voted an address requiring the governor to remove a 



102 BEN HARDIN. 

judge, the governor thereupon dismissed him from office. The Leg- 
islature now invoked this remedy. On the question of the address to 
remove Judge Clark, the vote in the House stood fifty-nine for, to 
thirty-five against, and so, for lack of the requisite two-thirds, the 
measure failed. 

Meanwhile, an appeal had been taken from the obnoxious decision 
to the Court of Appeals. Another appeal (Lapsley vs. Brashear), 
from a decision of the General Court in which the stay law had been 
upheld, was simultaneously prosecuted. Messrs. Harrison, Breckin- 
ridge, and Robt. Wickliffe, as counsel, ably argued the unconstitu- 
tionality of the stay law. Opposing were Judge Rowan, Chancellor 
Bibb, Judge Haggin, and Lieutenant-Governor Barry. In October, 
1823, both cases were determined in elaborate opinions by Chief-Jus- 
tice Boyle and Judge Mills, respectively. The relief law was pro- 
nounced unconstitutional. The question involved has ever been one 
of difficulty. The Federal Constitution forbids the enactment of any 
law impairing the obligations of contracts. How far the Legislature 
may relax or interfere with the creditor's remedy, or means of enforc- 
ing a contract, without impairing its obligation, has ever been a vexa- 
tious question in all the courts of the country. Before the decision 
was rendered those favoring relief measures had been confident in the 
belief of the constitutionality of the stay law. It is true Clark's 
decision had created serious apprehension, but the counter opinion of 
the General Court had allayed this feeling. 

The General Court consisted of two circuit judges, and so it was 
thus two to one. The legal profession wrangled and divided over the 
question. Able lawyers denounced the stay law as unconstitutional. 
But Bibb, ex-chief justice, and Rowan, ex-judge of the Court of 
Appeals, both affirmed its validity with specious and elaborate logic. 
Their high character and ability gave their utterances the weight 
of authority. Coupled with this, the Legislature, in the proceed- 
ings against Judge Clark, had not only pronounced its own opin- 
ion in favor of its constitutional power by an overwhelming majority, 
but manifested its purpose to resort to extreme measures with that 
officer or tribunal by whom its power was disputed. The preponder- 
ance of the debtor class and their unmistakable interest more potently, 
perhaps, than all else warped the public mind. In the face of all this 
the Appellate decision was indeed a shock and surprise. Instantly it 
provoked a civic storm that swayed and swept over the whole of the 
State. 



BOYLE, OWSLEY, AND MILLS. 103 

Two hostile parties sprang into being, the one powerful and threat- 
ening extreme measures, the other weaker, but firm and undaunted. 
The judges of the Court of Appeals were the special objects of denun- 
ciation and attack by the dominant party. To their defense rallied 
the minority. For awhile its efforts were unavailing to stay the 
popular tide. But it heroically bided its time amid repeated defeats 
in full faith of the final triumph of the eternal principles of justice 
and right. 

The Appellate bench at the time was occupied by John Boyle, 
chief-justice, and Benjamin Mills and William Owsley, associate jus- 
tices. As the ordeal on which they were about to enter was the 
most critical through which judges were ever called to pass, some- 
thing more than a word about them will be of interest. 

William Owsley was born in Virginia, in 1782. The next year 
his father emigrated to Kentucky and settled on the waters of Drake's 
creek, near Crab Orchard. His early life was uneventful and obscure. 
By some means he obtained a fair education, taught school, acted as 
deputy surveyor, and, also, deputy for his father — then sheriff. 
Encouraged by Chief-Justice Boyle, then practicing law at Lancaster, 
he entered the office of the latter as a student, and, in due time, 
received license and was admitted to the Garrard bar. He was early 
successful, both in obtaining practice and reputation — Boyle proving 
a helpful and faithful friend. He practiced in many counties, as was 
the custom of the profession at that day. Hardin first knew him at 
Richmond, while he was attending the Madison court, during his early 
years at the bar. He represented Garrard county in the Kentucky 
House of Representatives in 1809 and 181 1, in the latter year Hardin 
being his colleague from Nelson. April 8, 18 10, he was appointed 
by Governor Charles Scott, judge of the Court of Appeals, but on 
account of a reduction of the number of the judges from four to 
three, he shortly resigned. On the happening of a vacancy, however, 
he was, in 1813, again appointed by Governor Shelby. 

He, like his friend, preceptor, and associate, Boyle, was charged 
with an adherence to the precedents of the English common law, 
inconsistent with its proper adaptation to the litigation of a new coun- 
try and a Republican government. Otherwise, he was an unexcep- 
tionable judge. 

Benjamin Mills was a native of Worcester county, Maryland, born 
January 12, 1779. His family emigrated to the neighborhood of 
Washington, Pennsylvania, where he obtained his education and 



104 BEN HARDIN. 

studied medicine. He was awhile president of Washington Academy 
— afterward noted as Washington College. Removing with his father 
to Bourbon county, Kentucky, he quit medicine for the law, and as 
early as 1806 was admitted to practice at Paris. His ability and dil- 
igence soon brought him a good practice in the surrounding country. 
He was chosen to the House of Representatives of the State, serving 
six years — 1806, 1809, 1813, 1814, 1815, and 1816. In the latter 
year, Isham Talbot defeated him, by three votes only, for the United 
States Senate. In 1817 he was appointed circuit judge, by Governor 
Slaughter, who, in February, 1820, commissioned him Appellate 
judge, as successor of John Rowan, resigned. Judge Mills was not 
personally popular, but his integrity was beyond question, and his 
attainments extensive and profound. 

John Boyle, the chief-justice, although the elder of his associates, 
was enjoying the prime of superior faculties. He was humbly born 
October 28, 1774, at Castle Woods, on Clinch river, Va. In 1779 his 
father emigrated to Whitley's station, in Kentucky, and a few years 
afterward, when the protection of the stations was abandoned, settled 
on a farm in Garrard county, where his life was spent. Judge Boyle's 
earlier education was good, and, subsequently, he was instructed in 
Greek and Latin and the useful sciences by Rev, Samuel Finley, a 
Presbyterian clergyman. He studied law in Mercer county under the 
direction of Thomas Davis, a distinguished lawyer and politician, and 
removed to Lancaster and began practice in 1797. In 1800 he repre- 
sented Garrard county in the Legislature, and in 1802 was a member 
of Congress. He was twice re-elected without opposition and declined 
a fourth term. By appointment of President Madison he served as 
territorial governor of Illinois in 1808-9. Returning to Kentucky he 
was tendered a circuit judgeship, which he declined, but in April, 
1809, accepted the appointment of associate judge of the Appellate 
Court. The circumstances of his appointment to the Appellate judge- 
ship are interesting. Governor Scott had appointed Ninian Edwards 
associate justice of the Court of Appeals. Edwards had made large 
landed investments in Illinois, and for that reason desired to remove 
thither. Boyle was discontented with the governorship — whereupon 
Edwards proposed an exchange of offices — that is, that each should 
resign and be appointed to the office held by the other. Edwards 
succeeded in effecting this arrangement. He removed to Illinois, but 
owing to adverse legislation by Congress, lost a large part of his 
fortune. 



AN OLD COURT LEADER. IO5 

The year following Boyle was made chief-justice of Kentucky. 
He was in all respects the leader among his associates, and was a 
model judge of the old regime. Fortunately for the honor of the 
bench and the State, and the safety of the fundamental law, three men 
of more firmness, of greater intellectual and moral courage, or better 
fitted in all respects to meet the issue forced upon them, never at one 
time adorned the bench of that Court. "The judges, " said the late 
Chief-Justice Robertson, ' ' were charged with arrogating by their decis- 
ion supremacy over the popular will. Their authority to declare void 
any act of the Legislature was denied. They were denounced by the 
organs and the stump orators of the Relief party as usurpers and self- 
made kings. "* 

Thus originated the Relief party — afterward called the New Court 
party. Founded on the most delusive sophistry, the sheer product of 
self-interest and passion, it nevertheless swept the State like a lava 
wave. Party feeling divided the people as they were never before 
divided in times of peace. Relief and Anti-Relief — Old Court and New 
Court — were the successive battle cries. The original issues between 
them survived but a few years. Yet the hostile organizations effected 
thereon were so fused by the heat that marked their origin that under 
different names their influence was felt in Kentucky a quarter of a 
century afterward. Mr. Hardin's talents peculiarly fitted him for lead- 
ership in this contest. He entered it with all his soul and strength, 
and, as will be seen later, contributed no little to that triumph of con- 
stitutional principles that then were, as they must ever be, the only 
safeguard of free government from the untold perils of communism 
and anarchy. 

* In " Men and Times." 



106 BEN HARDIN. 



CHAPTER XI. 

JUDGE BREAKING. 

THE relief law had been declared unconstitutional by the Court 
of Appeals, October 8, 1823. An elaborate petition for rehear- 
ing by Bibb kept the question uncertain for some time longer. But the 
rehearing was finally denied. 

The relief movement had been rather a popular sentiment than an 
organized political factor until after the assembling of the Legislature of 
1823. There had been discussion, but the friends and the opponents 
of the mooted measures had looked with equal hope to the Appellate 
Court for a decision favorable to their respective views. The vote in 
the matter of Judge Clark the previous year showed twenty-four major- 
ity favorable to the relief measures. A vote at the present session, 
when the Relief party had clearly defined itself, developed sixteen 
majority in the House. As illustrating the state of public feeling, it 
is noteworthy that Judge George Robertson, intense anti-relief, was 
chosen speaker at its organization. A month later such a thing would 
have been morally impossible. In that interval the loose-lying ele- 
ments favorable to relief had suddenly developed as a compact and 
intensely partisan organization. 

John Rowan, then a member from the county of Jefferson, was the 
Relief leader. He was of Scotch descent. Born near York, Pennsyl- 
vania, in 1773, his father, William Rowan, removed a year later to 
Louisville, then a small village. The following year he settled at Fort 
Vienna, on Green river. In youth he was disabled by disease, and 
was awhile a sickly boy, and on this account his father and brothers 
made unusual efforts to afford him a superior education, so that he 
might make his way in the world. With a view to the education of 
his children, William Rowan removed to Bardstown. There John, at 
seventeen, entered the school of Dr. Priestly, and soon became an 
accurate and classical scholar, noted for bright parts. He studied law 
at Lexington with George Nicholas, a master of the law, and came 
to the bar at Bardstown in 1795. He soon attained high rank pro- 
fessionally. As an advocate in criminal cases he had few equals. As 
delegate to the State Constitutional Convention of 1799 from Nelson 



RELIEF LEADERS. IO7 

county he had performed his first public service. After that he 
removed to Frankfort, and became secretary of State under Governor 
Greenup in 1804. 

He had been member of Congress one term (1807-9) from the 
Bardstown district, to which he had returned. Seven times was he 
elected to the Kentucky Legislature — five times from Nelson and 
twice from Jefferson. He had been appointed Judge of the Court of 
Appeals in 1 8 19. By his services there he had maintained his char- 
acter for learning. He resigned the judgeship in 1820. " His mag- 
nificent presence, his rotund and mellow voice," says a discriminating 
writer, referring to his course in the Relief Legislatures, " ready and 
apt flow of speech, and a manner that was at once noble and aggres- 
sive, gave him complete domination over the majority. "* It does not 
appear that he had any legislative lieutenant equal to such a chief. 
He was of great learning and resources. Metaphysical yet forcible, 
imperious yet persuasive and earnest at all times, his equal could not 
be found in making " the worse appear the better cause." 

Ranking high in the Relief party was George M. Bibb, a profound 
lawyer, an ex-chief-justice of the Court of Appeals, and former United 
States Senator. Efficient co-workers were Barry, Kendall, and Blair. 
Barry, lieutenant-governor, had rare powers as a popular orator. His 
portrait strikingly resembles that of the eloquent Patrick Henry. 
Amos Kendall and Francis P. Blair, yet strangers to national fame, 
demonstrated the pow r er of the press and the mightiness of the pen. 
The Relief part)' was in the majority, but the minority was respectable 
in numbers and formidable in talent and resources. Crittenden, Rob- 
ertson, Green, Wickliffe, and Hardin were among the Anti-Relief lead- 
ers — the last ranking with the foremost. Mr. Clay was understood 
to be in sympathy with them, but took no active part. He was 
absorbed by national affairs and ambitions. In a letter at this period 
he expressed his purpose to "abjure Kentucky politics." 

After the obnoxious Appellate decision, the course to be pursued 
was a question of difficulty with the Relief leaders. Naturally, the 
people of the State were conservative. Aside from the respect due 
to its dignity and power, an able bench had given the Court of 
Appeals a strong hold on popular esteem. But so great was the 
prevailing excitement that the majority was ready to sanction any 
measure that would uphold the Relief laws. The juncture was 
critical. Something had to be done by the Relief leaders in deference 
to popular clamor — but what ? A mistake could not be hazarded. 

*John Mason Brown. 



IOS BEN HARDIN. 

A vigilant minority was ready to profit by it. A line of action was, 
however, soon matured. The proceeding by address had failed in 
Clark's case. The Relief party, though in the majority, fell short of 
the necessary two-thirds, then and now. If "address" had been 
feasible, the question of its effect on the public mind was uncertain. 
There was danger of a shock. If the judges were removed, it was 
not certain how Governor Adair might fill their places. Adair had 
been long in public life, and had served his country in war and in 
peace. But he had been suspected by many of complicity with Burr, 
and thus public confidence in him had been weakened. He was now 
old. He adhered to the majority, but kept terms with the minority 
so well as to be regarded as an uncertain political quantity. So the 
majority argued that, before resorting to stones, some admonitory 
turf should be used. It was also necessary to educate the public 
mind in regard to some very difficult questions of law. It was not 
only necessary to show the error of the court, but also indispensable 
to let the people understand that, from the predicate, "the people 
rule," flowed certain deductions ; that is, that the Legislature repre- 
sented the people, that that body spoke through its majority, and 
that any executive or judicial obstruction of the will of that majority 
uprooted free government. Pursuing this line of reasoning, Rowan, 
on December ioth, introduced some resolutions with a remarkable 
preamble. The resolutions covered less than a page, the preamble 
twenty-six. 

The decision of the court was reviewed and combated with great 
ingenuity, and in a style of reasoning more fitted to mislead the ignor- 
ant than to convince the intelligent. In short, that preamble furnished 
the platform on which the new-court advocates planted themselves, 
and the reasons by which they defended their position. Its great 
length precludes its insertion here, but its historic value and its 
importance in showing the views of Rowan and his followers are suffi- 
cient apology for including it in Appendix.* 

The resolutions denounced the decision as subversive of the dearest 
and most invaluable political rights, and stated that if it were not 
reversed, the Legislature ought not furnish any facilities for its 
enforcement, but should withhold the agency of the ministerial 
officers in propagating its erroneous doctrines. "The Legislature," 
it was said, "should repeal laws believed to be constitutional, when 
not expedient, not the courts." The resolutions underwent a spirited 
discussion, after which they were adopted by a decided majority. 

* See Appendix, Note B. 



: 



ELECTION RETURNS IN 1 824. IOQ. 

The purpose of these resolutions was manifest. There was some 
hope that the court would reconsider and reverse its decision. Failing 
in this, aggressive steps were to be taken, if the people so decided. 
Formal platforms for political parties had theretofore been unknown. 
The "preamble" served such a purpose for the Relief party. To 
retain it in power was to endorse its platform. 

In the election of 1824, a governor, lieutenant-governor, and mem- 
bers of the Legislature were to be chosen. Solomon P. Sharpe, 
writing from Shelbyville, in February, 1824, to a friend at Wash- 
ington, said: " We are likely to have a warm contest for governor. 
The State will divide into two parties, Relief and Anti-Relief. The 
contest will be between Desha and Tompkins. I fear our State will 
undergo a degree of excitement and division of parties that may dis- 
turb it for years to come." 

This letter was prophetic in more than one respect. The Relief 
party, as predicted, put forth Joseph Desha for governor, and Robert 
B. McAfee for lieutenant-governor. Christopher Tompkins and W. 
B. Blackburn represented Anti-Relief. In each county, the strongest 
men were brought out by each party for the Legislature. The con- 
test was waged vigorously and ably throughout the State, and at the 
election, in August, the Relief party won. Only part of the senators 
were chosen. That body stood twenty-two Relief to sixteen Anti- 
Relief. 

In the House, sixty-one of the one hundred members belonged 
to the Relief party. The following vote in the gubernatorial contest 
illustrates the drift of popular feeling: Joseph Desha, 38,378 ; Chris- 
topher Tompkins, 22,499; R- B. McAfee, 33,482 ; W. B. Blackburn, 
25,382. Rowan was again chosen to the Legislature. The well- 
known Robert J. Ward, from Scott, and Philip Triplett, from 
Daviess, were also members. The Anti-Relief party had lost in num- 
bers but gained in ability. James Simpson, afterward judge of the 
Court of Appeals, represented Clark. Daniel Breck, also, subse- 
quently, an Appellate judge, with Squire Turner, an eminent lawyer, 
was chosen from Madison. Henry Crittenden, afterward a congress- 
man, was member from Shelby, Robert Wickliffe, from Fayette, 
and Ben Hardin and Ben Chapeze were elected for Nelson. George 
Robertson was again a member. Rarely has a legislative body 
averaged so well in talent. 

The Legislature reassembled and organized November 1st. Robert 
J. Ward (Relief) was elected speaker. 



IIO BEN HARDIN. 

The preamble and resolutions of the preceding session had in effect 
been approved by the people at the polls. The obnoxious decision, 
however, was still unreversed. The three judges, or the three 
"Kings" (as Relief partisans called them), stood out against the 
majority of the people. "Turf" had been tried without effect. It 
seemed that nothing but " stones" would dislodge them. December 
20th, a long and fulminating preamble and resolutions, for the removal 
of the Appellate judges by address, were offered in the House. They 
did not, however, receive the requisite two-thirds majority, and so 
were lost. This result had been anticipated by the Senate. Decem- 
ber 9th, that body had passed a bill to abolish all acts organizing the 
Court of Appeals, and provided for its reorganizing by a vote of 
twenty-two to sixteen. On the 20th, the House began the consider- 
ation of the Senate bill for reorganization. It was discussed with 
great spirit and ability for three days. The Constitution had estab- 
lished the Court of Appeals, but left the Legislature to organize it, 
by fixing the number of judges. The Legislature had, long ago, 
passed acts for this purpose. These, it was contended, it might 
repeal. It had reduced the number of judges from four to three, in 
18 1 2. The voluntary resignation of the fourth judge had, at that 
time, prevented controversy. The Constitution provided that the 
judges should be appointed by the governor, by advice of the Senate, 
and hold office during good behavior. So it was argued that a judge 
could not be " repealed " out of office. 

Mr. Hardin closed the debate on the Anti-Relief side. He began 
speaking at nine o'clock, the evening that the bill passed. The final 
vote occurred at midnight. The following is Mr. Hardin's speech : 

" Mr. Speaker: The late hour of the night, the protracted period of 
the discussion, the impatience of the House to get the question — all unite 
and combine to embarrass me. That embarrassment is heightened by my 
belief and opinion that a majority in this House is pre-determined to pass 
this bill, and that any and everything I can say will be of no avail ; but, in 
the language of the man of God who ministers at the sacred altar, if I can, 
in this good and great cause, make one convert, nay, even bring one man to 
reflect seriously, I shall be amply paid and compensated for all my labor. 
But, alas ! my efforts, I fear, will be as vain as those of the boy who 
attempts to find where the bow that spans the arch of heaven reaches the 
ground. 

" In this contest, we have been denominated judge supporters and the 
Court party. As for myself, I, in the presence of this crowded and august 
assembly, with uplifted hands, deny the charge. No ties of ancient hospi- 






SPEECH AGAINST REORGANIZATION. I 1 I 

tality, none of intimate friendship, none of blood, bind me to a single judge 
in Kentucky. I stand here the humble advocate of the great rights of the 
people. I, together with my children, in common with the great body of 
the people, claim a freehold estate in the Constitution of my country. That 
has been invaded, and upon the last rampart do I now make my stand, f o 
far as I can defend that, I incidentally defend the judges, and no farther. 

"In the argument of this question, those gentlemen who advocate and 
support this bill have triumphantly asked if the people have not the right to 
make what form of Government they please; to change it and alter it as and 
when they please; and if the Government is not made for the people, and 
not for its functionaries who are but their agents and public servants. No 
man on this floor is a more determined advocate for the rights of the people 
than I am. I concur most cheerfully and heartily in the great political maxim 
that the people have a right to choose their own form of Government, and to 
give it from time to time such new modifications as may suit them; that this 
right is indisputable and unalienable; and that the Government is made for 
the people, and not for the officers who administer it. Those who oppose 
the present measure do not question one of the positions which I have just 
now stated, but deny their application to the present question. We are not 
now in convention making a constitution, nor are we revolutionizing the Gov- 
ernment and making a new one, which always renders a resort to first princi- 
ples necessary. The contest is, what are the relative powers of the three 
departments of the Government, as now organized, under the present consti- 
tution ; not what kind of a constitution we ought to have, or what defects are 
in it, and what amendments and alterations ought to be made. The fallacy 
and defect of all that has been said and written on the opposite side is, its 
want of application to the real question. The gentlemen on the other side 
declaim eloquently upon what politicians call first principles, which none dis- 
pute, and endeavor to instill into the minds of the people that the great and 
fundamental rights of self-government are invaded and a judicial despotism 
is about to be established. Nothing of that kind exists. Such assertions are 
unfounded, untrue, and utterly false. The tocsin of alarm is to be sounded ; 
the people's jealousies are to be awakened and their fears excited. The oppo- 
site side are afraid to let the people coolly, deliberately, and dispassionately 
reflect, lest their real motive be discovered, which is nothing more nor less 
than this; to seize the reins of Government, enjoy the emoluments of office, 
which, under various pretenses, they will increase, and at the same time keep 
from paying their debts. 

"After having made these preliminary remarks, I will now call the atten- 
tion of the House more particularly and immediately to the subject under 
consideration. The bill proposes a reorganization of the Court of Appeals, 
and by that means to get clear of the present judges and put four others on 
the bench. I will first ask, why this change? Do the present laws as to the 



112 BEN HARDIN. 

time of holding the court, the jurisdiction of the court, or the salaries of the 
judges, need amendment? and if so, what amendment? None has asserted 
that to be the fact. It is admitted by all that the real object is to remove the 
present judges. 

" Before I examine the question relative to the power of the Legislature 
to remove the judges in this way, permit me to ask, what have they done to 
merit such severe chastisement from the Legislature? The charge against 
them is that they have decided that the replevin law of 1820 in its retrospect- 
ive feature impairs the obligation of contracts which had previously been 
made, and is, therefore, a. violation of the Constitution of the United States 
and the State of Kentucky. 

"The report of the joint committee has intimated that the judges have 
decided the occupying claimant laws unconstitutional. Such an insinuation 
is false and groundless, and made with a perfect knowledge that the same was 
untrue. I boldly and without fear of contradiction assert that the judges of 
that court have decided directly, in the case of Fowler vs. Halbert, 4 Bibb, 
page 52, that the occupying claimant laws are constitutional, and, incident- 
ally, they have recognized the validity of those laws in more than twenty 
cases. What renders the assertion unpardonable is, that the gentleman who 
drew the report was apprised of that decision, but he knew that the great 
body of the people were extremely excitable and sensitive upon the subject 
of the occupant laws'. To keep up the alarm was necessary to the attainment 
of the views of the party, and, like some veteran politicians, he has, I fear, 
learned the maxim that the end sanctifies the means. 

"The first question which presents itself for investigation is this: Is the 
law of 1820, in its retrospective feature, unconstitutional, or not ? That law, 
among other provisions, allows a replevin in the clerk's office, for two years, 
upon debts contracted and due before the law was enacted. It is an unde- 
niable fact that such a right did not exist when the contract was made. 
There has been much said and written about right and remedy, and how far 
the remedial laws of the land form a part of the contract. I do not intend, 
upon that part of the question, to detain the House long, and shall, with 
one or two remarks, content myself to submit that branch of the subject 
with what has been written by the judges and said by my honorable friends, 
with whom I am happy to agree. There is great difficulty in drawing the 
line throughout, between right and remedy ; and the inquiry, in some of its 
parts, will baffle the most subtle intellect. We can all distinguish night 
from day, but they so run into each other in the twilight that the precise 
time when one is gone and the other commences is hard to ascertain. My 
definition of the obligation of a contract is this : The effect, which the 
existing laws of the place where the contract is made give to the stipula- 
tions and covenants of the contracting parties. In some cases the laws 
declare the effect to be to enforce a specific execution of the contract ; in 



SPEECH AGAINST REORGANIZATION. I I 3 

others, the laws give damages in consequence of a breach of the contract. 
The rule to ascertain the amount of damages is fixed by law, and when the 
law gives no remedy, either specifically or in damages, then there is no legal 
obligation. A contract made in Kentucky, where there is no consideration 
given, can not be enforced anywhere ; and why ? Because, for such con- 
tract the laws of the place where the contract is made gives no remedy to 
enforce it, or to recover damages for a failure to perform it. The same 
rule would apply when the contract was made about the sale of land, and 
there was no writing evidencing the same, or when the consideration was 
illegal or turpid. 

" The statute of limitations is only remedial, because it withholds the 
remedy after a certain time ; but it is evident and manifest that the obliga- 
tion of a contract does consist in the effect which the law gives to the con- 
tract, and that effect is its enforcement specifically, or damages for a breach 
thereof. For, until the parties themselves fail to perform, the law can take 
no notice of it ; the laws never operate until the parties refuse to act. A 
contract consists of two parts — the thing agreed to be done, and the time 
when the same shall be done ; these two are fixed by the parties, and when 
there is a failure in either of the particulars, the legal right to enforce the 
contract, or recover damages, commences. The legal right could not accrue, 
unless time was a material part of the contract, and there had been a failure 
in that part. Any law purposely made to postpone the time of enforcing a 
contract, or recovering damages for a breach thereof, to a longer period 
than the laws in force when the contract was made allowed, unquestionably 
impairs the obligation of the contract, if time be a material part of it ; and 
I trust I have already shown that time is a material part. The argument 
that time is no part of the contract is at war with the common sense and 
experience of every man. Suppose I owed you, Mr. Speaker, one thousand 
dollars, due to-morrow, and the Legislature, to-night, was to pass a law that 
I should not be compelled to pay you for one hundred — nay, two years ; I 
have no doubt you would, without any hesitation, say that such a law inter- 
fered with your contract, and that the time of getting the money was mate- 
rial with you. If the Legislature can extend the time of payment beyond 
the delays necessary and incidental to the administration of the law, it can 
as well extend it to one hundred as two years ; the principle is the same, 
except that one is a more outrageous abuse of power, unconstitutionally 
exercised, than the other. 

"The law of 1820 gives the right of replevin, for two years, to all debts 
then existing, or which may thereafter be contracted. It is only the retro- 
spective part of the law which has been decided unconstitutional. The Con- 
stitution of Kentucky declares ' that no ex post facto law, or any law impair- 
ing contracts, shall be made.' The Constitution of the United States 
declares that no State shall ' pass an ex post facto law, or law impairing the 

8 



114 BEN HARDIN. 

obligation of contracts.' These clauses of the two constitutions were 
intended both to secure a man's person and property from retrospective 
laws. The term ' ex post facto ' has been construed to apply to laws of a 
penal character ; that no law should be made affixing the punishment to a 
particular act, after the same was committed. The other member of the 
sentence has ever been construed so as to prevent the Legislature, not only 
from passing laws impairing contracts in the literal sense of the word, but 
also to prevent them from passing laws to divest an individual of a vested 
right. That this construction was given to that part of the Constitution of 
Kentucky by the convention is evident from another part of the same instru- 
ment, which reads in these words : ' Nor shall any man's property be taken 
or applied to public use without the consent of his representatives and with- 
out just compensation being previously made to him.' By this last clause of 
the Constitution it is manifest that no man's property, even for public use, 
can be tak; j n without just compensation ; and if it can not for public pur- 
poses, without compensation made him, surely none will be bold enough to 
contend that it can, either directly or indirectly, be taken for private pur- 
poses without any remuneration at all. Such a power assumed by the Leg- 
islature would render insecure all we have of every kind and description, 
and defeat one of the great objects of government, which is the security of 
our property. 

"The Supreme Court of the United States, the Courts of Appeals of 
Virginia, South Carolina, and New York, have all decided that no law 
impairing the obligation of contracts, or retrospective in its operation, can 
be passed. Having the seventh volume of Johnson's Reports of the deci- 
sions of New York in my hand, I beg the indulgence of the House while I 
read a passage out of it. 

" It is a principle in the English common law, as ancient as the law itself, 
that a statute, even of its omnipotent Parliament, is not to have a retrospective 
effect. (Bracton, lib. 4, fol. 228, 2 Inst., 293.) This was the doctrine as laid 
down by Bracton and Coke ; and in Gilmore vs. Shuter (2 Mod., 310, 2 Lev., 
227, 2 Jones, 10S), it received a solemn recognition in the Court of King's 
Bench In that case a suit was brought after the 24th of June, 1677, upon 
a parol promise made before that date, but to be performed after that date, 
and the question was, whether it was void by the statute of frauds and per- 
juries, which enacted that ' from and after the 24th of June, 1677, no action 
should be brought to charge any person upon an agreement made in consid- 
eration of marriage, etc., unless such agreement be in writing.' It was 
admitted that the promise declared on was of the same kind with those 
mentioned in the statute, but the court agreed unanimously that the statute 
was to be read by a transposition of the words, for that it was not to be pre- 
sumed that the act had a retrospect to take away an action to which the 
plaintiff was then entitled, and that the other construction would make the 



SPEECH AGAINST REORGANIZATION. I I 5 

act repugnant to common justice. When we consider that this decision was 
pronounced as early as the reign of Charles II., we are forcibly impressed 
with the spirit of equity and the independence of the English courts. So, 
again, in the modern case of Crouch vs. Jefferies (4 Bur., 2460), which was 
a qui tarn suit for a penalty, the question was, whether a statute passed 
after the commencement of the suit, allowing delinquents, by such a day, to 
pay a stamp duty and rid themselves of the penalty, should affect the case 
of a suit already commenced, and the Court of King's Bench unanimously 
determined that it could not. ' It can never be the true construction of this 
act,' said Lord Mansfield, 'to take away this vested right and punish the 
innocent pursuer of it with costs. 

" 'The maxim in Bracton was probably taken from the civil law, for we 
find in that system the same principle, that the law-giver can not alter his mind 
to the prejudice of a vested right (Dig. 50, 17, 75). This maxim of Papin- 
ian is general in its terms; but Dr. Taylor (Elements of the Civil Law, 
168) applies it directly as a restriction upon the law-giver ; and a declaration 
in the code leaves no doubt as to the sense of the civil law (Cod. 1, 14, 7). 
This passage, according to the best interpretation of the civilians, relates 
not merely to future suits, but to future as contradistinguished from past con- 
tracts and vested rights. It is, indeed, admitted that the prince may enact 
a retrospective law, provided it be done expressly ; for the will of the prince, 
under the despotism of the Roman Emperors, was paramount to every obli- 
gation. Great latitude was anciently allowed to legislative expositions of 
statutes; for the separation of the judicial from the legislative power was 
not then distinctly known or prescribed. The prince was in the habit of 
interpreting his own laws for particular occasions. This was called the inter- 
locutio principis ; and this, according to Huber's definition, was quando prin- 
cipis inter partes locuntur et jus dicunt {Proelcc. Jwis Rom. vol. 2, 545). No 
correct civilian, and, especially, no proud admirer of the ancient republic 
(if any such then existed), could have reflected on this interference with 
private rights and pending suits without disgust and indignation, and we are 
rather surprised to find that, under the violent and irregular genius of the 
Roman government the principle before us should have been acknowledged 
and obeyed to the extent in which we find it. The fact shows that it must 
be founded in the clearest justice. 

" ' Our case is happily very different from that of the subjects of Justin- 
ian. With us the power of the law-giver is limited and defined. The judicial 
is regarded as a distinct, independent power. Private rights have been better 
understood and more exalted in public estimation, as well as secured by pro- 
visions dictated by the spirit of freedom and unknown to the civil law. Our 
constitutions do not admit the power assumed by the Roman prince, and the 
principle we are considering is now to be regarded as sacred. It is not pre- 
tended that we have any express constitutional provision on the subject, nor 



Il6 BEX HARDIN. 

have we any for numerous other rights dear alike to freedom and justice. 
An ex post facto law, in the strict technical sense of the term, is usually- 
understood to apply to criminal cases, and this is its meaning when used in 
the Constitution of the United States; yet laws impairing previously-acquired 
civil rights are equally within the reason of that prohibition, and equally to 
be condemned. We have seen that the cases in the English and in the civil 
law apply to such rights, and we shall find upon further examination that 
there is no distinction in principle, nor any recognized in practice, between 
a law punishing a person criminally for a past innocent act, or punishing him 
civilly by divesting him of a lawfully-acquired right. The distinction con- 
sists only in the degree of oppression, and history teaches that the govern- 
ment which deliberately violates the one right soon ceases to regard the other. 

"'There has not been, perhaps, a distinguished jurist or elementary 
writer within the last two centuries, who has had occasion to take notice of 
retrospective laws, either civil or criminal, but has mentioned them with cau- 
tion, distrust, or disapprobation. Numerous authorities might be cited, but 
I will select only two, and those no ordinary names. Lord Bacon gives more 
toleration to retrospective, and particularly to declaratory laws, than can now 
be admitted under our more precise distribution and limitations of the pow- 
ers of Government; yet he was, at the same time, duly sensible to their 
danger and injustice. He confines them to special cases, limits them with 
solicitude, and speaks of them in general with reproach. Puffendorf lays 
down, without any qualification, a general and pointed condemnation of all 
such laws. He says: "A law can be repealed by the law-giver, but the rights 
which have been acquired under it while it was in force do not thereby cease." 
It would be an act of absolute injustice to abolish with a law all the effects 
which it had produced. Suppose, for example, that there exists a law that 
the father of a family may dispose of his property by will. The Legislature 
may, without doubt, restrain this unlimited right of disposing by will, but it 
would be unjust to take away the property acquired by will during the exist- 
ence of the former law. 

" 'The Constitution of New Hampshire, established in 1792, has an arti- 
cle in its Bill of Rights that "retrospective laws are highly injurious, oppress- 
ive, and unjust," and that no such laws should be made, either for the decision 
of civil causes or the punishment of offenses. It was also an article in the 
Constitution established for the French republic, in the year 1795, that no 
law, criminal or civil, could have a retroactive effect. Even French despot- 
ism, atrocious as it is in practice, yields in its laws to the authority of such a 
principle ; for the same limitation is laid down as a fundamental truth in the 
code now in force under the sanction of the French empire. And as often 
as the question has been brought before the courts of justice in this country 
they have uniformly said that the objection to retrospective laws applies as 
well to those which affect civil rights as to those which relate to crimes. 






SPEECH AGAINST REORGANIZATION. II7 

"'In the case of Osborne vs. Huger (1 Bay's Rep., 179), which came 
before the Supreme Court of South Carolina in 1791, the question arose upon 
a statute relative to the duty of sheriffs as to civil process. The court rejected 
the construction of a retrospective operation of the statute according to its 
literal meaning; and Judge Burke, in particular, said that he should not be 
for construing a law so as to divest a right, and that a retrospective law in 
that sense would be against the Constitution of the State. The judges of the 
Supreme Court of the United States, in the case of Calder vs. Bull (3 Dallas, 
388), speak in strong terms of disapprobation of all such laws; and in Ogden 
vs. Blackledge (2 Cranch, 272) they consider the point too plain for argument 
that a statute could not retrospect so as to take away a vested civil right. 

" 'This train of authority declaratory of common sense and reason of 
the most civilized States, ancient and modern, on the point before us, is suf- 
ficient, as I apprehend, to put it at rest and to cause not only the judicial, 
but even the legislative, authority to bow with reverence to such a sanction.' 

"There is another objection to the constitutionality of the law. After I 
obtain a judgment upon a debt due before the law passed, the defendant, 
without my privity, knowledge, or consent, can come into the clerk's office 
and enter into bond to pay me in two years, which bond discharges the 
judgment. I ask, does not the Legislature destroy my first contract and 
compel me to take a new one, without my consent ? The law, not only in 
that respect, impairs the obligation of my first contract, but substitutes a 
new one in its stead, and that against my will. At the same time it gives 
the defendant, from the date of the last bond, two years to pay it. This is 
called, by the Legislature, replevin ; it is no replevin. Jacob, in his law 
dictionary, defines replevin thus: 'A replevin is a remedy grounded and 
granted on a distress, being a redeliverance of the thing distrained.' Such 
were the rules existing at the time the Constitutions of the United States and 
of Kentucky were made. It is not the name of the law that is to give con- 
stitutional sanction, it is the provisions of the law itself. I will not enter 
into the question whether all replevin laws are unconstitutional, because the 
same is not necessary, as no such decision has been given by the Court. 

"On the other side, it has been urged, with some plausibility, although 
there is nothing substantial in it, that the right to a replevin for two years is 
not altering the contract, or the time of payment, but is only refusing to 
give you the aid and assistance of the law, to coerce payment for two years 
by withholding the process of the law. That reasoning does not afford even 
a shadow of an answer to the right given by the law, to replevin in the 
clerk's office for two years, before the plaintiff has asked for an execution. 
I would ask, gentlemen, where is the difference between authorizing my 
debtor to discharge my judgment, before I issue execution, by giving a new 
note payable in two years, and a law, after my debt fell due, and before suit 
was commenced, compelling me, if a new note, payable in two years, was 






I 1 8 BEN HARDIN. 

tendered, to receive it in lieu and as a substitute for the first note? For my 
part, I can perceive none. 

"The Constitution further provides 'that all courts shall be open, and 
every person for an injury done him in his lands, goods, person, or reputa- 
tion shall have remedy by the due course of law, the right and justice admin- 
istered without sale, denial, or delay.' I ask this House to answer me one 
question — is your whole relief system only the necessary delays of courts of 
justice, in the enforcement of the laws, or is it not intended to delay or deny 
the administration of law and justice until the creditor is forced to compro- 
mise with his debtor and take Commonwealth's paper, which is but half the 
amount of his debt ? No State can ' make anything but gold and silver 
coin a tender in payment of debts ; ' and to get clear of the operation of that 
clause in the Constitution of the United States (for if it had not been for 
that clause, instead of replevin upon replevin, the relief system would have 
made paper a tender at once) the Legislature of Kentucky deny, hinder, and 
delay justice, until the creditor shall give up one-half his demand to get the 
other. It is in vain to tell me, or the people of Kentucky, or of the United 
States, that this is a system of replevin. It is a denial of justice for the worst 
of purposes, that injustice should be done the creditor. As I said before, 
it is not the name of a law that is to characterize it. To turn a lion out in 
the streets of Frankfort he would be no less dangerous because he might 
have a label fastened to his forehead that it was a lamb. Every man, woman, 
and child in Kentucky understood your relief system to be an indirect mode 
of making your bank paper a tender in payment of debts. 

"It has been repeatedly asked, in this House and elsewhere, has the 
Legislature no power, in cases of famine, pestilence, and war, to pass such 
laws ? To that I answer, that since the commencement of this relief system 
we have not been visited and scourged either by famine or pestilence. 
Crops have been abundant and markets tolerably good. As to war, there 
has been but one kind ; men have smuggled themselves into power, who 
have their fellowman's work, property, or money, and wish to make him no 
return for it. The only war which I know of is between honesty and dis- 
honesty. 

"But, Mr. Speaker, the Constitution makes no distinction between war 
and peace. The same construction must be given to it at all times ; that is, 
its fair import and meaning. It is astonishing that gentlemen should con- 
tend that the Constitution should be varied in its construction and exposition 
to suit the state of the times. 

"Some reliance has been placed upon this part of the Constitution — 
' that no power of suspending laws shall be exercised, unless by the Legis- 
lature or its authority.' The first question arising from this clause of the 
Constitution is, what part of the laws can the Legislature suspend? I 
answer, just such parts as the Legislature can repeal. The supreme law of 



SPEECH AGAINST REORGANIZATION. I 1 9 

this land is the Constitution of the United States, the acts of Congress made 
in pursuance of the Constitution, and treaties made by the United States, 
within the treaty-making power ; next to that, but yet in subordination 
thereto, is the Constitution of Kentucky. All those laws are above any act 
of our State Legislature. Is there any man in this House so infatuated with 
the relief system as to suppose the Legislature of Kentucky can repeal the 
Constitution of the United States, or the Constitution of Kentucky ? Surely 
there is none. It is absurd to suppose that the power to suspend laws is 
greater than the power to repeal. While upon this part of the question, it 
may not be amiss to remind the House of the memorial of the late Governor 
Adair, laid before us at the present session. In his memorial he says that 
the law compelling the officers of the government to take Commonwealth's 
paper was unjust and unconstitutional, as it respects his own salary. It will 
be recollected by the House that, as governor, he approved and signed the 
law ; that he was the warm advocate for it, we all know. 

' : I should be sorry to treat with disrespect our late governor ; I have an 
affection for his person, a reverence for his character; and I rejoice that his 
political sun is about to set with unclouded serenity. But yet, that magna- 
nimity which made him declare the law unjust and unconstitutional as to 
himself seemed so peculiarly characteristic of the party to which he belongs, 
that I could not help admiring it. What ! unjust and unconstitutional to 
the governor who approved and signed the law ? And yet, as to the con- 
stables, sheriffs, jailors, and magistrates, who receive but a small pittance 
from government, it was all right and just! 

"I have said this much, Mr. Speaker, to prove the law of 1S20, which I 
some time ago referred to, was, in its retrospective feature, unconstitutional. 
At the same time, I have endeavored to answer some of the arguments of 
gentlemen which properly belonged to that branch of the subject. 

"The next question is the right, nay, the duty, of the judge to decide all 
laws unconstitutional which he in his conscience believes to be so. The 
Constitution of the United States contains this provision : ' This Constitu- 
tion, and the laws of the United States which shall be made in pursuance 
thereof, and all treaties made, or which shall be made, under the authority 
of the United States, shall be the supreme law of the land ; and the judges 
in every State shall be bound thereby, anything in the Constitution or laws 
of any State to the contrary notwithstanding.' The Constitution of Ken- 
tucky is above any legislative enactment, or why have a Constitution at all ? 
When a cause is brought before the court, the judges must apply the law to 
the facts of the cause ; the question then again occurs — what is the law ? 
The plaintiff relies upon the Constitution of the United States and the Con- 
stitution of Kentucky. The defendant relies upon an act of the State Legis- 
lature. The law of the Legislature is opposed to, and contradicts, the two 
Constitutions; what is the judge to do? To let the act of the Legislature 



120 BEN HARDIN. 

govern is giving it more authority than the Constitution, and renders the 
Constitution a dead letter. The judge, it must be recollected, is sworn to 
support both Constitutions. Can any man hesitate, for a moment, in say- 
ing what the judge is bound to do? I answer, no ; he must decide the law 
unconstitutional, if that be his opinion, or he is perjured. 

" But some of the learned civilians and eloquent Demosthenes of the 
present day, whose immortality is about to be handed down to posterity in 
drunken toasts over a whisky bottle, draw a distinction between a violation 
and a palpable violation, which, to my mind, is incomprehensible. Who is 
to judge of the confliction between the Constitution and the act of the Legis- 
lature ? The judges. What is to distinguish a violation from a palpable 
violation ? Those learned gentlemen have given the world no sensible land- 
mark, because, in the nature of things, there is none. But, according to 
their idea, this must be the rule to contradistinguish the two kinds of viola- 
tion — when the judge's mind becomes satisfied, upon examination without 
any process of reasoning, and the conviction just at once flashes upon the 
mind. Suppose there are two judges on the bench. One arrives at his 
conclusion by intuition ; those profound constitutional lawyers say he has a 
right to decide the law of 1820 unconstitutional, because, to his mind, it is 
palpable. The other comes to the same result with great deliberation, after 
a long and laborious investigation. The last judge shall not be permitted to 
decide the law unconstitutional, because, to his mind, it is not palpable. 
But suppose, farther, that a judge to-day perceives the unconstitutionality of 
a law, very clearly ; but, for want of apt words to express his opinion, he 
indulges in circumlocution ; according to the late doctrine of the nnv school, 
he shall be broke if he decide the law unconstitutional. But on to-morrow, 
having let blood and taken a dose of medicine the over-night, his opinion, 
yet remaining unaltered upon the same subject, is expressed with great 
clearness, perspicuity, and brevity ; for the last opinion he is not to be 
made accountable. I have no hesitation, Mr. Speaker, in -pronouncing that 
this late doctrine of violations and palpable violations is either a reproach 
to the law and constitutional learning of Kentucky, or to its candor and 
sincerity. 

" Having made these few remarks upon the right and duty of the courts 
to decide a law unconstitutional, if they believe it so, I will now proceed to 
another point, which seems next in order, that is, the power of the Legis- 
lature, constitutionally exercised, to remove the judges for deciding a law 
unconstitutional. 

" In the commencement of my argument, I reminded this honorable 
body that we were not the people, assembled in convention, making a gov- 
ernment. On the contrary, we were only one department of the govern- 
ment, and in ascertaining our powers no recurrence could be had to first 
principles; but our inquiry must be confined to our powers under the Con- 



SPEECH AGAINST REORGANIZATION. 121 

stitution. The basis upon which this and all other republics arc erected is 
the will of the people ; the object is the good of the people ; and a principle 
which runs through every branch of the government — or otherwise the same 
could not be republican — is universal responsibility in all the officers of gov- 
ernment to the people, not to us — the omnipotent Legislature. 

" The government of the people is divided into three distinct co-ordinate 
departments ; one to make the laws, another to expound the laws, and a third 
to execute them. The departments emanate from the same great fountain 
of power — the people; they are equal and independent of each other, with 
a few exceptions, which shall be noticed hereafter. And it is necessary, in 
the nature of things, that it should be so, for the people intended, in making 
their government, that they should be checks and balances to each other. 

"This great principle of three departments of governments — co-equal, 
co-ordinate, and independent of each other, to a great extent — has been 
considered one of the pillars upon which this republic, that of the United 
States, and our sister States, are erected. It is an indispensable ingredient 
to the very existence of all republics. 

" I have previously said that another principle, equally indispensable in 
a republic, was universal responsibility from all the officers of government 
to the people. The only responsibility of the Legislature is the right of the 
people not to re-elect, which we all know they frequently, very frequently, 
exercise. It would not be convenient, after a governor was elected, to try 
him by all the people of the government, because they could not be assembled 
as a court; therefore, the Constitution has pointed out how he shall account, 
by an impeachment before the Senate, when sitting for that purpose ; not as a 
Senate in its law-making character, but as a court of judicature. In the same 
way almost every civil officer in the government may be brought to account. 

" I beg the attention of the House while I refer to the Constitution itself. 
'All impeachments shall be tried bv the Senate; when sitting for that pur- 
pose the senators shall be upon oath or affirmation ; no person shall be con 
victed without the concurrence of two thirds of the members present.' The 
governor and all civil officers shall be liable to impeachment for any misde- 
meanor in office. 'The judges, both of the Supreme and inferior courts, 
shall hold their offices during good behavior ; but for any reasonable cause, 
which shall not be a sufficient ground for impeachment, the governor shall 
remove any of them on the address of two-thirds of each house of the Gen- 
eral Assembly.' I ask, is it the law-making character of the Legislature 
that two-thirds of the members may address the governor to remove a judge? 
I answer, no; but as the special agents of the people ; and it is in that way 
that the people make the judges account to them by making them account 
to their agents, especially appointed for that purpose. 

" If this position be correct, the power to remove, being a specially dele- 
gated one, can not be exercised unless for the causes specified in the Con- 



122 BEN HARDIN. 

stitution. A wider range than this can not be taken. The power to remove 
the other officers of government is not a power resulting from their legisla- 
tive jurisdiction to pass laws, for the public good, for it is no part of the 
law-making power. Furthermore, the moment you extend it beyond the 
causes pointed out in the Constitution, and give the latitude contended for, the 
independence of the other departments of each other is destroyed, the checks 
and balances of the Constitution are prostrated and trampled under foot. 

" I now ask the attention of the House, while I endeavor to point out 
the grounds for which a judge may be impeached and addressed out of office. 
A judge may be impeached for any misdemeanor in office, and nothing else. 
He may be addressed out of office for any reasonable cause, which shall not 
be a sufficient ground for impeachment. If the judge misbehave in his 
office he is to be broke by impeachment. I would ask this House if it be a 
misbehavior to decide a law unconstitutional if the judge believe that to be 
the fact ? surely not ; but, on the contrary, he would misdemean himself if 
he did not so decide. The judge can only be addressed out of office for any 
reasonable cause, which is not a sufficient ground for impeachment; the clear 
meaning of the Constitution is, that for official misconduct he is to be 
impeached, and can not be addressed out; for the Constitution says, 'and 
which shall not be a sufficient ground for impeachment.' What then would 
be a sufficient ground for address ? I answer, want of capacity, or of moral 
character; for a judge can not be removed at the will and pleasure of the 
Legislature, for the cause of removal must be reasonable. 

" Is there any charge that the judges are destitute of any of those virtues 
which adorn a moral and Christian man? I answer, no. Is it pretended 
that they want capacity ? I have heard of no complaint of that kind ; nay, 
I hazard nothing in saying that, when passion and prejudice shall subside, 
their opinions will be considered equal to any judges we ever have had, and 
may fairly enter the list of competition with the proudest of their present per- 
secutors. I again demand, what have they done? We are told that they 
have decided our relief system unconstitutional in its retrospective feature. 
That is no misdemeanor in office, for it is their right and duty to so decide if 
that was their opinion. That decision furnishes no evidence to my mind that 
they were corrupt or that they wanted capacity or moral virtue. Nor can any 
honest, well-balanced mind, uninfluenced by party or prejudice, say that the 
decision furnishes any evidence of official corruption, want of capacity, or a 
destitution of moral rectitude. To say a man shall pay his debts according 
to contract is at all times honest and just, in all ages and in all countries; 
and I trust we have not yet sunk so low that such a decision is to be without 
a friend or advocate upon this floor. 

" We are told the good of the people requires their removal. I deny it. 
The good of the people never can require their Constitution to be violated, 
first, in the enactment of the law, and next, in the removal of the judges. 



SPEECH AGAINST REORGANIZATION. I 23 

Secondly, the Constitution does not provide that whenever the Legislature 
may think the good of the people requires it that the Constitution or any of 
its provisions can be dispensed with; and if there be no such provision, it 
necessarily follows that it does not authorize judges to be removed because 
the Legislature, in the plenitude of supposed or usurped powers, may choose 
to violate any part of it. 

" Gentlemen ought to be cautious when they depart from the fair, obvious, 
and manifest import of the Constitution, as the same was written by the con- 
vention, in pursuit of what they suppose or call the public good. They are 
traveling on dangerous ground. It is nothing more or less than the plea of 
all tyrants and despots, for in their most wanton acts of oppression and cru- 
elty they plead the public good and the public necessity. Bonaparte pleaded 
necessity, public good, and glory of France, for his conscriptions and wars. 
England relies on the same plea for her system of oppressive taxation and 
her prostration of everything like civil liberty. John Adams had the same 
defense to make for his alien and sedition laws, and all his acts of official mis- 
conduct and maladministration. The truth is, no republic can exist long 
without a Constitution, the charter of their liberties : and that charter amounts 
to nothing unless it is reverenced by all and obeyed by all, and never broken 
or evaded under any pretense whatever, even if it should assume the impos- 
ing name of public good or necessity. It is by imposing names and appear- 
ances we are always deceived. The sirens beguiled by their music. Christ 
was betrayed by a kiss. 

" We are told, in the next place, that the judges ought to be removed by 
way of asserting the supremacy of the Legislature. That doctrine goes to 
an entire annihilation of the Constitution, and is subversive of all Govern* 
ment. The Constitution contains a delegation of power to the three depart- 
ments of Government, and also it contains prohibitions and restrictions upon 
the three departments of Government. Certain great fundamental rights are 
reserved to the people. The three departments are to check each other, if 
either exceed its constitutional power and encroach upon the other depart- 
ments or the great rights reserved to the people. 

" Suppose the Legislature were to abolish trial by jury, or refuse to let a 
man vote who was not worth one thousand dollars, or take away the liberty 
of conscience and the right to worship God in our own way, what is the rem- 
edy? None but an appeal to the court; and that can be of no avail if you 
say the judges are to be removed should they decide the law unconstitutional, 
because the vindication of legislative supremacy requires their removal as well 
in one case as another. 

"The Legislature a few years ago enacted a law that every person carry- 
ing a dirk concealed should be fined a hundred dollars. The Court of Appeals 
decided the law unconstitutional, because the Constitution said the right of 
the citizen to bear arms shall not be questioned ! Why was not the legisla- 



124 BEN HARDIN. 

tive supremacy asserted then ? The reason is evident. It did not inter- 
fere with that class of men who wish never to pay their debts, and the other 
class of gentlemen who carry and use dirks were not displeased at it. 

"I will now call the attention of the House to the bill itself. The bill 
proposes to organize the Court of Appeals and to direct the appointment of 
four judges for the court. The Constitution of Kentucky says 'the judicial 
power of this Commonwealth, both as to matters of law and equity, shall be 
vested in one Supreme Court, which shall be styled the Court of Appeals, 
and in such inferior courts as the General Assembly may from time to time 
create and establish.' 

"The bill must be based upon one of two grounds, both of which have 
been assumed in argument in support of it. First: That the court has 
never yet been organized; and secondly, that the Legislature can, from time 
to time, so reorganize it as to turn the judges out of office and appoint new 
ones in their places. Each of those grounds I shall separately examine. 
As to the first, the fact is directly opposed to those gentlemen who assert 
the court has never been organized. The court was organized under the 
old Constitution,* and in full operation when the new one was made, which 
contains this clause : ' That all laws of the Commonwealth, in force at the 
time of making said alterations and amendments, and not inconsistent there- 
with, shall continue as if the said alterations and amendments had not been 
made ' I will not detain the House by reading the different acts of the 
Legislature, adopted at different times, both under the old Constitution and 
new one, showing the complete organization of the Court of Appeals, defin- 
ing its jurisdiction, times of holding court, number of judges, and a variety 
of other provisions. A gentleman in this House, who seems to sanction 
that doctrine, has been a judge of that court, received the public money, 
and discharged the duties of a judge; does he pretend his acts were so 
many acts of usurpation?! The Legislature, at different times, has author- 
ized the publication of the decisions of the Court of Appeals, until, I believe, 
we have fifteen volumes, which have cost upward of $20,000, and we have 
just now, for the first time, through the sagacity of debtors, discovered we 
have never had a Court of Appeals, and that all the decisions of that court 
are void, although, since the year 1792, there have been at least thirty differ- 
ent gentlemen commissioned judges of that court, and the State has paid to 
the judges of that court, since the organization of the Government, nearly 
$100,000. Yet the whole has been a mistake. I think we may well exclaim 
that a second set of Daniels are with us. 

"As to the second ground upon which efforts are made to sustain the 
bill — the Constitution ordains that there shall be a Court of Appeals. The 
jurisdiction of the court is appellate, and 'co-extensive with the State, under 
such restrictions and regulations, not repugnant to the Constitution, as may 



* The old Constitution here referred to is that of 1792— the new one that of 1799. 
f John Rowan. 



SPEECH AGAINST REORGANIZATION. I 25 

be from time to time prescribed by law.' The Legislature can make any 
regulation to govern the court not incompatible with the Constitution. It can 
not give the court original jurisdiction, because the Constitution says its juris- 
diction shall be appellate. It can not restrict its jurisdiction within less limits 
than that of tl>e State, because its jurisdiction is co-extensive with the State. 
It can not say that the judges shall not be conservators of the peace through- 
out the State, because that jurisdiction is given by the Constitution. It can 
not give it another name, because its style is 'the Court of Appeals.' It 
can not say that the judges shall have no salary, because the Constitution 
says that they shall have an adequate compensation. It can not abolish the 
court itself, because the Constitution says ' there shall be a Supreme Court, 
which shall be styled the Court of Appeals.' They can not ordain and 
establish the court, because that is done by the Constitution ; and the Con- 
stitution says that the Legislature can make ' no regulation repugnant to the 
Constitution.' It may be asked — what can the Legislature do with the Court 
of Appeals ? I answer, it can say how many judges in the first instance that 
court shall have. It can add to the number fixed in the first instance, and, 
should there be a vacancy, it can reduce the number to the number of 
judges in commission; but it can not turn any out who are in commission, 
except by impeachment or address, because the judge holds his office during 
good behavior and the continuance of his court ; and I have, I trust, shown 
his court can not be abolished. It can regulate the jurisdiction of the court, 
except that it must be appellate. It can regulate the times of the sessions 
of the court and fix the salaries of the judges, with this qualification, that 
the same must be adequate. 

"The bill does not attempt to abolish the Court of Appeals, for, as I have 
said before, that can not be done ; besides, if the same were attempted, the 
present bill does not accomplish the object; for if the Legislature had the 
power to abolish the Court of Appeals, it is a contradiction in terms to say 
a court is abolished because one section in a bill repeals a law regulating the 
court and the next re-enacts them. I would ask, gentlemen, when a bill is 
thus framed, is there any one instant in which the court ceases to exist? 
Surely not. 

" The bill is unconstitutional in these particulars : It repeals all laws giv- 
ing compensation to the present judges of the Court of Appeals; it directs 
the governor to appoint four new judges of that court, and allows but four 
judges in all to the court, where there are three judges now in commission. 

"The friends of the bill admit the same is unconstitutional, repugnant, 
and contradictory in its provisions, unless, by the bill itself, the present 
judges are turned out of office ; that is the pivot upon which its constitution- 
ality must turn. The tenure by which the judges of the Court of Appeals 
hold their offices, as I have often said, ' is during good behavior and the 
continuance of the court,' subject to be removed by impeachment or address. 



126 BEN HARDIN. 

The present mode of proceeding is neither an impeachment nor address. It 
can not abolish the court, because the same is ordained by the Constitution, 
and if an abolition was attempted, it can not operate, because the same bill 
that destroys reorganizes; consequently, there is no one moment in which 
the court is out of existence. 

"The convention acted unwisely, if what the friends of the bill contend 
for be true, to have guarded the independence of the judiciary so far as to 
require two-thirds to remove the judges by impeachment or address, and yet 
at all times leave them at the mercy of the Legislature. The fact that the 
convention required two-thirds, by impeachment or address, to remove the 
judges, proves conclusively to my mind that the new doctrine of declaring 
judges, clerks, and all other officers, out of office by a bill, has grown up 
since the adoption of the Constitution, and is no part thereof. It is asked, 
can not the Legislature abolish the courts? I answer, all the courts but the 
Court of Appeals and county courts. They are created and ordained by the 
Constitution. The other courts are either to be created or not, as the Legis- 
lature may choose; and if it be a matter of discretion with the Legislature to 
create, it would necessarily follow that they would have a right to alter, mod- 
ify, or abolish at will and pleasure. The Legislature has the same power 
over all courts but the Court of Appeals and county courts that a convention 
would have over those two courts. 

" What are the provisions of the present bill ? Does it modify the juris- 
diction of the court? Not to any considerable extent. It is in vain to say 
that it is a bill to either organize or reorganize the Court of Appeals. It is 
an unhallowed effort to create vacancies, that some of those sterling, insolv- 
ent patriots may get snug places with high salaries. 

' ' Admit the doctrine of the gentlemen to be correct. Next year bring in 
a bill and call it a bill to reorganize the county courts. Repeal all the stat- 
utes now in existence giving jurisdiction to that court. Declare the justices, 
and clerks, and constables appointed by that court out of office. But in the 
same bill re-enact all the old laws, as is done in the present case. What, 
then, is the result, if what is now contended for be correct, that the judges 
of the Court of Appeals are out of office? It is that every justice in the 
State, the clerks and constables, are out of commission ; and the governor, 
in filling the vacancies, can have an opportunity to reward those who voted 
for him. It is in vain that the justices may say, ours is a constitutional court 
and can not be abolished as long as the Constitution remains. It will be 
answered and said, so was the Court of Appeals. In vain will they exclaim 
and say, we hold our commissions during good behavior, unless we are 
removed by impeachment or address. The precedent established by the pres- 
ent bill will be relied on. 

' ' The clerks may say, we hold our offices until we are removed by the 
Court of Appeals. So did the clerk of the Court of Appeals hold his by the 



SPEECH AGAINST REORGANIZATION. \2J 

same tenure, and yet he is expressly legislated out of office. The constables 
may say, we can only be removed by the county court, and can not be thus 
hurled from our little offices. It will be answered that the sergeant of the 
Court of Appeals has been thus dealt by. Hold your peace ! the Legislature 
can do no wrong. 

" Pass the present bill and carry it into effect; you put every officer in the 
Government at the mercy of the Legislature ; not to be removed by impeach- 
ment or address, but by an ordinary act of legislation, which can be passed 
by one vote more than one-fourth of the State. The people intended that 
the judicial department should be a check to the legislative, should that 
department attempt any unconstitutional act, any encroachment upon the 
great inalienable rights of the people. I would ask, how can that department 
be a check, if the other, by an ordinary act of legislation, can destroy it at 
will and pleasure ? 

' ' It has been asserted in argument that the Court of Appeals was a creat- 
ure of legislation, and not of the Constitution, and that the same was origi- 
nally brought into existence by the Legislature; consequently the Legislature 
had a right to abolish it. The Constitution ordained that there should be 
such a court, defined in part its jurisdiction, and gave name to the court. It 
left some of the details to be filled up by legislation ; but although the Legis- 
lature might modify, from time to time, part of the regulations of the court, 
yet it does not thereby follow that the Legislature can abolish the court alto- 
gether; for if the court can be abolished for a moment, it can for as long a 
time as the Legislature may choose; and if the Court of Appeals can be 
abolished, so can every other court; and if all the courts can be abolished, 
the consequence is that the legislative department can annihilate, at will and 
pleasure, the judicial department, although the Constitution says that ' the 
powers of Government shall be divided into three distinct departments and 
each confided to a separate body of magistracy, to-wit, those which are legis- 
lative to one, those which are executive to another, and those which are judi- 
cial to another.' That the convention should imperatively have ordained 
some of the courts, and left others to legislative discretion, is very obvious. 
To have declared there should be three departments, and yet have ordained 
none of the courts, and left them all to be brought into existence or not. as 
the Legislature might choose, would have been acting unwisely, and not ful- 
filling in the Constitution what at the commencement of that instrument they 
declared they would do, to-wit, create three departments of Government. 
To have left the whole of the courts to legislative discretion, then the courts, 
which constitute the judiciary, would not have emanated from the people, 
and would not be a co-ordinate department of the Government, but the mere 
creature of legislation, and no department. The Constitution has thus 
ordained two courts, to-wit, the Court of Appeals and county courts. That 
the convention did not intend to regulate the whole judiciary system, I read- 



128 BEN HARDIN. 

ily admit. All other courts, besides the Court of Appeals and county courts, 
the Legislature may erect and establish at will and pleasure, and according to 
its discretion. 

" Mr. Speaker, the remarks which I have this moment made are intended 
to show that neither the Court of Appeals nor county courts can be abolished 
by the Legislature ; and that neither the judges of one court nor the justices 
of the others can be turned out of office, except by impeachment or address. 
And in support of that position I beg leave to read a part of the decision of 
the Court of Appeals of Virginia : 

" 'Judge Tucker: The independence of the judiciary results from the 
tenure of their office, which the Constitution declares shall be during good 
behavior. The offices which they are to fill must, therefore, be permanent 
as the Constitution itself, and not liable to be discontinued or annihilated by 
any other branch of the government. Hence, the Constitution has provided 
the judiciary department should be arranged in such manner as not to be sub- 
ject to legislative control. The Court of Appeals, Court of Chancery, and 
General Court are tribunals expressly required by it ; and in these courts the 
judiciary power is either immediately or ultimately vested. 

" ' These courts can neither be annihilated nor discontinued by any leg- 
islative act ; nor can the judges of them be removed from their office for any 
cause except a breach of their good behavior. 

" 'But if the Legislature might at any time discontinue or annihilate 
either of these courts, it is plain that their tenure of office might be changed ; 
since a judge, without any breach of good behavior, might, in effect, be 
removed from office by annihilating or discontinuing the office itself.' 

" We have been told in argument that the Legislature, in effect, legislate 
men out of office when they make new counties out of parts of other coun- 
ties. The Legislature has, by the Constitution, the right to make new coun- 
ties, and in the formation of new counties they throw the local officers out 
of their old counties, and, by that means, if they do not remove in, but con- 
tinue to reside out, they vacate, by the Constitution itself, their respective 
offices. ' All civil officers for this Commonwealth, at large, shall reside 
within the State ; and all district, county, or town officers within their res- 
pective districts, counties, or towns.' 

" It has, also, been urged in argument, that the quarter session and dis- 
trict judges were turned out of office by the act of 1802, which abolished 
those courts and constituted the circuit courts. That act can be no author- 
ity for the present bill, because the district and quarter session courts are 
created exclusively by the Legislature, and not by the Constitution ; conse- 
quently, the Legislature can abolish them when it pleases. 

" The act of Congress of 1802, abolishing the circuit court system estab- 
lished in 1 80 1 under the administration of John Adams, has been relied on 
as a case in point. Instead of that act being an authority for the gentlemen,. 



SPEECH AGAINST REORGANIZATION. I 29 

I consider it as affording a strong argument on our side of the question. The 
Constitution of the United States contains the same provision that the Con- 
stitution of Kentucky does, and reads thus : ' The judicial power of the 
United States shall be vested in one Supreme Court and such inferior courts 
as Congress may, from time to time, ordain and establish." The court abol- 
ished by Congress was not a court established and ordained by the Consti- 
tution of the United States; but it was a court created by Congress exclu- 
sively, and which it had a right to create or not, at its discretion, and is pre- 
cisely analogous to the act abolishing the quarter session and district courts. 
It is admitted in argument, in debates of 1802, that Congress could not abol- 
ish the Supreme Court of the United States because that was ordained by 
the Constitution. When the Republicans, in their arguments, conceded that 
they could not abolish the Supreme Court, the federal part of the House, who 
opposed them, contended that the tenure of office of a judge of the circuit 
and Supreme Court were alike, and that Congress could abolish neither. To 
that it was answered, that the Supreme Court was a creature of the Consti- 
tution, and the circuit court a creature of Congress, and over the latter Con- 
gress had power. Upon this part of the subject, I beg leave to refer to the 
arguments of some of the Republican members of Congress. 

" General Jackson, of Georgia, here quoted third article, first section of 
the Constitution, and then proceeded : 

" ' Here, then, are two tribunals First, the Supreme Court, the creature 
of the Constitution, the creature of the people ; the other, the inferior juris- 
dictions, the creature of the Legislature. And, notwithstanding the play of 
gentlemen upon the words shall and may, they are in meaning essentially dif- 
ferent. The word shall, applied to the Supreme Court, is imperative and 
commanding, while the word may, applied to the inferior courts, is discre- 
tionary, and leaves to the Legislature a volition to act or not to act, as it 
sees fit.' 

" General Mason, of Virginia — pages 57 and 58, in the debates — uses the 
following argument : 

" ' When I view the provisions of the Constitution on this subject, I 
observe- a clear distinction between the Supreme Court and other courts. I 
am sensible that when we come to make verbal criticism, any gentleman, of 
a sportive imagination, may amuse our fancies by a play upon words. But 
this is not the way to get rid of a genuine construction of the Constitution. 
With regard to the institution of the Supreme Court, the words are impera- 
tive; while, with regard to inferior tribunals, they are discretionary. The 
first shall, the last may, be established. And surely we are to infer from the 
wise sages that formed that Constitution, that nothing was introduced into it 
in vain. Not only sentences, but words, and even points, elucidate its 
meaning. When, therefore, the Constitution, using this language, says a 
Supreme Court shall be established, are we not justified in considering it as 

9 



I30 BEN HARDIN. 

of constitutional creation ? And on the other hand, from the language 
applied to inferior courts we are equally justified in considering their estab- 
lishment as dependent upon the Legislature, who may, from time to time, 
ordain them, as public good requires ? Can any other meaning be applied 
to the words " from time to time ? " And nothing can be more important on 
this subject than that the Legislature should have power, from time to time, 
to create, to annul, or to modify, the courts as the public good may require ; 
not merely to-day, but forever, and whenever a change of circumstances may 
suggest the propriety of a different organization. On this point there is great 
force in the remark of the gentleman from Georgia, that among the enumer- 
ated powers given to Congress, while there is no mention made of the 
Supreme Court, the power of establishing inferior courts is expressly given. 
Why this difference, but that the Supreme Court was considered, by the 
framers of the Constitution, as established by the Constitution; while they 
considered the inferior courts as dependent upon the will of the Legislature.' 

" It has been urged that the Constitution does not ordain and establish 
the Court of Appeals, because it uses the words ' shall be vested in one 
Supreme Court, which shall be styled the Court of Appeals,' which is 'only 
directory and not mandatory to the Legislature. The Constitution uses the 
same mode of expression as to the legislative and executive departments. 
' The legislative power of this Commonwealth shall be vested in two distinct 
branches.' 'The supreme executive power of .the Commonwealth shall be 
vested in a chief magistrate, who shall be styled the governor of the Com- 
monwealth of Kentucky.' The same mode of expression is used in the 
Constitution of the United States. All human ordinances and statutes must 
contain imperative words ; it is only for Deity to will a thing, and it is so ; 
such as ' let there be light, and there was light.' Man must ordain, must insti- 
tute ; and mere willing will not do. 

" Great reliance has, by the gentleman from Mercer (Mr. Daviess), been 
placed upon the act of 1813, which reduced the number of judges of the 
Court of Appeals from four to three. In answer to that, I remark, that at 
the time the law of 1813 passed, there were but three judges in commission. 
Judge Owsley's commission was pro tern., and had expired. 

"Mr. Speaker, although I have admitted that all the courts, except those 
ordained by the Constitution, can be abolished if the honest and bona fide 
intention of the Legislature is to get clear of a useless court, or to alter or 
modify that part of the judiciary system; but, if that be not the object, and 
their only intention is to turn men out of office and put others in their stead, 
I say that it is an indirect violation of the true spirit and intention of the 
Constitution ; it is a gross and flagrant abuse of power. Upon this part of 
the question I will call the attention of the House to what John Randolph 
said in the debates upon the judiciary in 1802. It was in relation to abolish- 
ing the circuit courts of the United States, which were analogous, as I have 



SPEECH AGAINST REORGANIZATION. I 3 I 

said before, to our quarter session and district courts : ' Mr. Randolph : I 
agree that the Constitution is a limited grant of power, and that none of its 
general phrases are to be construed into an extension of that grant. I am 
free to declare that if the intent of this bill is to get rid of the judges, it is a 
perversion of your power to a base purpose ; it is an unconstitutional act. 
If, on the contrary, it aims not at displacing one set of men, from whom you 
differ in political opinion, with a view to introduce another, but at the general 
good by abolishing useless offices, it is a constitutional act. The quo animo 
determines the nature of this act, as it determines the innocence or guilt of 
other acts.' 

" It is asked, is it not competent and within the power of the Legislature to 
repeal any law or resolution they may pass? That I will concede as a gen- 
eral proposition, although it is not universally true. But it still does not follow 
that all officers who have been commissioned or installed into office, in part 
by virtue of such law or resolution, are out of office. By a resolution of 
both Houses, a time is fixed for the election of a senator to Congress ; after 
the election is over, can we turn out the senator by repealing the resolution? 
Surely not. The State Legislature by law lays off the State into congressional 
districts, regulates the whole formality and mode of election ; can we turn 
our members of Congress out by repealing the law ? None will be bold 
enough to claim such power. The form and manner of our own elections 
and that of the governor is in part regulated by acts of the Legislature. Will 
a repeal of those acts turn us out of this House and break the governor? 
The true distinction is this : When the office is created by law, a repeal of the 
law turns the officer out; where the office is created by the Constitution, and 
details of electing the officer are left to the Legislature, the repeal of the laws 
directing the manner of filling the office can not disfranchise the officer. 

"Although the number of judges of the Court of Appeals is fixed by an 
act of the Legislature in the first instance, yet when they are nominated by 
the governor and approved by the Senate, the tenure by which they hold 
their office is not then regulated, nor can it be regulated, by an act of the 
Legislature; but the same is governed by the Constitution itself, which is 
during good behavior and the continuance of the court; and when using the 
word court, I beg to be understood as not meaning the judges of actual ses- 
sion, but the court as a component part of the Government of Kentucky; 
for although all the judges might die or be removed, yet the court would 
still be in existence. If the present mode of breaking our judges were con- 
stitutional, why did the Constitution require the causes of the address to be 
spread upon the journals ? Why did it point out how every officer in the 
Government was to be removed, if it can be accomplished in this way? 

"If this law be constitutional, then I say that a partisan Legislature and 
governor can, in an act no longer than two sections, turn every officer in 
Government out. The first section to repeal all acts and parts of acts regu- 



132 BEN HARDIN. 

lating the filling of every office in the legislative, judicial, and executive 
departments of Government, and to declare all officers in Government out 
of office, and the next section to re-enact the same laws and to direct the 
governor and respective courts to appoint new officers. 

"A member from Washington county has declared that the Legislature 
has the right to pass this law, because the power is in their hands. The gen- 
tleman seems to confound right and power, and to make them convertible 
terms. No argument is more fallacious. Right does not always follow 
power. The despot or tyrant has the power to take my life, but he has no 
right. The highway robber has the power to assassinate me for my money, 
but I hope the day has not yet come in which his right will be vindicated. 

" We will suppose for a moment that I have been incorrect; that the act 
of 1820 is constitutional, that the decision of the court is erroneous, and that 
the Legislature has a right to pass the present bill. I would still ask this 
House to pause and inquire, is the same necessary and expedient ? Will you 
not allow the judges to decide upon a constitutional question ? Is it not 
their duty when the question is brought before them ? And will you turn 
them out of office for doing their duty, because you may suppose their opin- 
ion is wrong? Are our judges to be removed whenever the Legislature may 
differ with them in opinion ? If that be the tenure by which they hold their 
offices, then I say it is a brittle tenure, and our judiciary, instead of being a 
safeguard, a shield, and buckler, to defend the property, liberty, and life of 
the citizen, is a mere mockery. 

" Mr. Speaker, I deny that the relief system ever was just, equitable, 
and politic. If I am indebted to a man, it must be either in consideration 
for his money, property, or labor; and is there any justice or equity in the 
Legislature stepping in and saying I shall have a longer time to pay in than 
was agreed between us, unless he will take half the amount ? If men are 
made to pay their debts, how is the State injured ? It is only a change of 
property from the wrongful possessor to the rightful claimant. Is this kind 
of legislative interference necessary to keep a country out of debt ? You 
might as well fill the pockets of a spendthrift to make him more economical. 
There is no way to keep a country out of debt but to make debtors pay, 
and then debts will not be contracted without the means of payment ; and 
when they are contracted the debtors' efforts will be to be punctual in the 
payment. Then we will see that melancholy and afflicting state of things 
which we witness every day, that men get in debt, and instead of adopting 
the ways and means of payment, their whole efforts are directed how, with 
the assistance of the Legislature, to cheat and defraud their creditors. 

" But say, for a moment, that the delay system was necessary, or individ- 
ual sacrifices would be made. Yet, those sacrifices had better be made than 
that confidence between man and man should be destroyed. No association 
of men can exist, in the nature of things, without confidence in each other. 



SPEECH AGAINST REORGANIZATION. 133 

"The credit of a man or State is equal to his or its capital. The moment 
you destroy punctuality in payment of debts, and confidence between men, 
you withdraw from the property of the country that portion of its capital 
which consists in its credit. This is one of the great causes of the extraor- 
dinary depression in the price of all property, and the apparent scarcity of 
money. 

"There is yet a reason against this relief system, which, with me, is para- 
mount to all others, and outweighs everything that can be alleged in its 
favor. It has injured the reputation of this State abroad, and nearly destroyed 
the morality of the country. All governments, but that of a republic, are 
governments of force, and by force they are preserved. A republic is 
based upon the will of the people ; and that will is kept alive, sustained, 
and directed by the morality and intelligence of the people. The moment 
the morality of the country is destroyed, the republic is gone. 

" Can any person deny that the honesty and morality of the country have 
been greatly impaired and broken in upon by this relief system ? You tell 
men to be dishonest by telling them that they shall not be compelled to pay 
their debts ; you render them dishonest by destroying the confidence between 
them ; you spread the mischief wider and extend the evil further by legis- 
lating exclusively for them, and abusing their creditors; you are about to 
put a finishing hand to the corruption of the country by endeavoring to 
bring the administration of the laws into disgrace and contempt. The 
officer of government, who administers them, you reproach and revile. 
What is the result of this conduct ? It is to superinduce an opinion among 
the people that there is a total and entire irresponsibility to all law, order, 
and government. Hence, we see, or hear, every day of the most daring 
and most atrocious murders and robberies. From the highest to the lowest 
in society men are turned out cut-throats and assassins. I hazard nothing in 
asserting the fact to be that more flagitious and enormous crimes have been 
perpetrated within the last two years than for twenty years before. Why all 
this ? Because men are taught to contemn good order, and to be regardless 
of all subordination to the law. Those bonds of civil society which bind us 
together have been burst asunder, and we are about to revert back to a state 
of original barbarism. Nothing keeps the government from falling to 
pieces but our State being a member of the United States. 

" These arguments of mine are bottomed upon the supposition that the 
relief system is constitutional, and that the decision is wrong. Yet, I have 
endeavored to prove the laws unwise, unwholesome, and impolitic. But I 
do not wish to be understood as admitting that the new law is constitutional, 
or that the decision is wrong ; for I do now affirm, as I have ever done, that 
I believe the law unconstitutional, unjust, and inexpedient. 

" For the sake of argument, we will suppose further that it is a matter of 
doubt as to the policy, expediency, and constitutionality of the law ; then I 



134 BEN HARDIN. 

ask the gentlemen who support the bill, ought they to push it through the 
House? I ask them further, are their minds free from doubt? Have they 
been so well drilled that their drilling with so many men in and out of this 
House, in opinion upon its constitutionality, has, as yet, produced no hesi- 
tancy ? 

" What have the Legislatures of our sister States done when their courts 
have decided laws unconstitutional ? Did they remove the judges or abolish 
the courts ? I answer, neither. 

" The Yazoo purchase of Georgia was effected by bribery and corruption. 
The next session the sale was, by the Georgia Legislature, declared void. 
Georgia, after that, sold and transferred the land to the United States. The 
purchasers proposed a compromise. Congress refused upon the ground that 
the original purchase was void, and that the Legislature had so declared it 
by a subsequent act. After all this had been done the Supreme Court, in 
the case of Peck and Fletcher, decided that the last act of the Georgia Leg- 
islature was void because it impaired the obligation of the contract in the 
first purchase. When this decision was given what did Congress do ? Did 
it remove the judges or abolish the court. Neither; but acquiesced in the 
decision, and paid the company five millions of dollars for a compromise. 

" If we turn the present judges out, who can we get that will better fill 
their places ? What kind of men are we to have ? Who will submit to the 
humiliation of giving in their confession of faith before they are appointed? 
For it is certainly intended to appoint none who will not swear allegiance to 
the doctrine of the new school. They certainly can have no pride of char- 
acter — no conscious self-worth. 

" Can we get men of more law-learning and better morals? I doubt it 
very much. Can we get men whose judicial opinions will be more favorable 
to the settlers and occupants of lands ? Certainly not ; and, in all probabil- 
ity, not so much so. The present judges in opposition to the Supreme 
Court of the United States have sustained our occupying claimant laws, our 
limitation laws, and the doctrine in relation to writs of right. In the selec- 
tion of new judges we have some risk to run. I have heard men spoken of 
as judges who I know have heretofore been against our limitation laws. 

" We have been told that the judges have insulted the people by calling 
them fools, idiots, and liars. There is not one word of truth in that asser- 
tion. The judges have been called ' three kings,' and it has been said that 
they wished to usurp the Government and tyrannize over the people. Who 
ever heard of judges destroying a republic ? They are but few in number. 
A faithful discharge of their official duties makes no friends, it gives no 
influence. They have no patronage ; the purse and sword of the State are 
wielded by the other departments. 

"All republics have gone the same way; men of daring courage and 
unbounded ambition have played the demagogue by abusing the honest 



SPEECH AGAINST REORGANIZATION. I 35 

officers of government, sounding alarms and crying out to the people, we 
are oppressed by those who administer the Government, pretending a glow- 
ing love and ardent devotion to the people. This course of conduct breaks 
the harmony of the Government, produces discord, confusion, riots, and 
tumults ; still advancing, step by step, the climax is capped by pushing the 
people into blind anarchy and wild uproar. In this state of things the Gov- 
ernment is a prize to the first bold and daring adventurer. The history of 
all republics proves this assertion. Athens had her Pisistratus; Rome, her 
Caesar ; England, her Cromwell ; and France, her Bonaparte. 

"There has been one answer given to all we can say on the subject; that 
is, the people have expounded the laws and returned their verdict against the 
judges. This I deny. But suppose it was a fact; I never want a judge on 
the bench who, before he decides, will inquire either as to the power and 
influence of the litigant parties, or as to the popularity of the cause, or of 
the law relied on. I want no man on the bench who wishes to know before 
he gives his opinion, what is the state of the weather ; whether it is serene 
and uncloudy, or stormy and tempestuous. In fact, deliver me from the 
iudge who, before he decides on my property, liberty, or life, asks what the 
people have got prepared for his dinner ? 

"The people have given their verdict, and it is in favor of the judges. 
The only question submitted to the people was, to remove the judges by 
address. The people have decided. There are not two-thirds for their remo- 
val; therefore, the Constitution pronounces the judgment of acquittal. 

" My friends in their remarks have complained about midnight cau- 
cuses ; I have neither blame nor censure to bestow on that account. Jeffer- 
son, Madison, and Monroe were brought into office by a caucus ; and I think 
if Mr. Clay and his friends, last winter, had gone into caucus with Crawford 
and his friends, those gentlemen, who have been persecuted and hunted down 
by the administration, would not have been where they are now. 

" In the British Parliament, the opposition is marshaled by concert. The 
administration arrays its forces. There we see the prime minister, as we 
have in part done here, leading on his placemen, his pensioners, the house- 
hold troops, the mercenaries, the Swiss guards, and. on the wings of this 
formidable phalanx, we see our little courtiers who bask in the sunshine of 
executive favor and patronage. 

" I will, Mr. Speaker, solicit the attention of the House, a moment longer, 
until I notice the amendment of the gentleman from Hardin. I will vote 
for that amendment out of a spirit of compromise and conciliation. In all 
great political questions we ought to yield something, and meet members 
upon half-way ground. 

"If it be onlv to produce a change of decision in the Court of Appeals, 
this amendment effectuates that object, because it requires the whole court 
to concur before a law shall be decided unconstitutional. The same mode 



I36 BEN HARDIN. 

•of selecting the one judge, that must be adopted in selecting the four, is all 
that is requisite. 

" Permit me, Mr. Speaker, to beg, beseech, and conjure the members 
of this House to use their best effort to settle this question without pushing 
matters to extremities. Our common country is distracted with this ques- 
tion. Party spirit rages with great violence. The State is nearly divided as 
to numbers and talents. A victory ought not to be desired by either party. 
The pride of victory on the one side, and the mortification of defeat on the 
other, widens the breach between them; and, instead of restoring peace, har- 
mony, and concord to the country, increases that bad state of feeling which 
already too much exists. We are all members of the same political family ; 
let us bury the hatchet and brighten the chain of peace ; embrace as brothers, 
and then, in a state of good feeling, turn our attention to internal improve- 
ments and the amelioration of our common country." 

The closing scenes of the debate were marked with tumult and dis- 
order. It was complained that the governor and others (not members) 
were on the floor of the House exerting their personal influence for 
the passage of the bill. ,; The scene," said an eye-witness, "resem- 
bled a camp-meeting in confusion and clamor, but lacked its holy 
impulses."* The bill passed like a whirlwind. The result, however, 
showed that in debate the advantage had been with the Anti-Relief 
leaders. Galloway, Cosby, Martin Hardin, Triplett, and Watkins had 
voted for the address. On the bill to reorganize, Galloway did not 
vote, and the others named voted against it. An intelligent writer 
has observed very truly that in these debates the Relief party received 
its death stab. The bill was promptly approved by the governor, and 
(as its friends supposed) became a law. Thus, for the first time in 
this State, was witnessed an attempt by one department of govern- 
ment to overthrow a co-ordinate department. The real purpose of the 
majority of the Legislature, it need hardly be remarked, was to reor- 
ganize the court, not because its existing organization was defective, 
but solely to remove judges who differed with the Legislature as to the 
just limit of the law-making power. 

During this period partisan feeling grew exceedingly bitter. Mr. 
Hardin spared neither sarcasm, wit, nor ridicule. So exasperated did 
one Haskins become that on one occasion, armed with a hickory blud- 
geon, he attacked Mr. Hardin, as he emerged from the capitol, inflict- 
ing personal injury. This was regarded as an amusing episode by 
"Relief" partisans, and celebrated in cotemporary doggerel: 

" A hickory stick and a Haskins lad, 
They make the old tom-cat so mad." 



* The late Chief-Justice George Robertson. 



THE NEW COURT. 



13; 



CHAPTER XII 



A CASE AFFIRMED. 




k N January 10, 1825, Governor Desha appointed for chief-justice 
of the new Court of Appeals Y\ llliam Taylor Barry, and for 
associate justices James Haggin, John Trimble, and Benjamin W. 
Patton. Shortly afterward, Patton died, and Rezin H. Davidge was 
appointed in his place. 

Of Barry mention has already been made. His talents were those 
of an advocate, rather than a jurist. He shone at the bar, and was 
notably skillful as a criminal 
lawyer. On the bench, he 
was at a disadvantage. Hag- 
gin was a prominent member 
of the Lexington bar, and en- 
joyed an extensive practice. 
He, more than any of his asso- 
ciates, suffered from the par- 
tisan heat of the period by 
assaults on his private charac- 
ter. So violent were these 
that he professed to fear as- 
sassination. John Trimble 
was born December 4, 1783. 
He was a brother of Robert William taylor barry. 

Trimble, who died while a justice of the Supreme Court of the United 
States, and of whom Judge Story said: "Men might differ with 
respect to the rank of other lawyers, but all admitted that no one 
was superior to Robert Trimble in talents, in learning, in acuteness, 
in sagacity." But the relationship existing between these brothers 
was of blood only, not of genius. The educational advantages of 
John, in early life, were inferior to those enjoyed by his distinguished 
brother. When nineteen, he was secretary of Robert Evans, gov- 
ernor of Indiana Territory. After this, he studied law with that 
renowned preceptor, George Nicholas, of Lexington. He practiced 
law at Paris from 1807 to 18 16. He was then appointed Circuit 




I38 BEN HARDIN. 

judge, upon which he removed to Cynthiana. His ability was ques- 
tioned by some while he was acting as Appellate judge. This may 
have resulted from partisan rancor, or because (as Collins says) only 
those who knew him intimately " suspected the general variety of his 
knowledge and his severely-critical judgment." Davidge's sole claim 
to distinction seems to have been his appointment to the vacancy 
caused by Patton's death. These men did not measure in ability 
with the bench of the " old " court. The danger of such a compar- 
ison seems to have been overlooked by the Relief governor. The 
Legislature also committed another serious mistake to the party detri- 
ment. The majority chose their leader, John Rowan, United States 
Senator. They thus not only lost the benefit of his personal leader- 
ship, a loss that was irreparable, but his influence was diminished by 
the charge that ambition had been his spring of action. 

The success of the Relief party (henceforth known as the New 
Court party) did not bring tranquillity to the State. The new court 
fell into an undignified struggle with Achilles Sneed, clerk of the 
old court, for possession of his records. Bloodshed was narrowly 
avoided. The records were only obtained by violence. For this, 
the grand jury of Franklin county indicted the new court, its judges, 
and officers. The grand juries of several counties found indictments 
against the majority in the Legislature for passing the reorganization 
act. A motion to admit Madison C. Johnson to the Woodford bar, 
on faith of license granted by Boyle and Owsley, judges of the old 
court, after the new court was established, caused a heated debate 
of a day or so in duration. The circuit judge, Jesse Bledsoe, evaded 
the question, and admitted Johnson as a matter of courtesy. 

Meetings were held throughout the State, some to approve and 
others to condemn. Addresses were published by the minority in 
the Legislature, by the old court judges, and by Sneed, its clerk. 
Pamphlets, discussing the merits of the controversy, were published, 
and the newspapers were burdened with the theme. Barry and 
Haggin were charged with various irregularities affecting their integ- 
rity. Mills was denounced because, while Appellate judge, he had 
rendered some service as counsel in a case in which he had been 
attorney before his appointment. Barry, after he was commissioned, 
but before he was sworn in, defended a son of Governor Desha for 
highway robbery and murder. Mills went armed to prayer-meeting 
to defend himself, as he claimed, from apprehended violence. All 
these topics were extensively discussed. The old court kept open 



HOW HAGGIN WAS "HASTENED. I 39 

for business, Some appealed to it, some to its rival. The inferior 
courts and the legal profession were in a state of sore perplexity, from 
which no partisan logic or enthusiasm would relieve. " I should be 
glad," wrote Clay to Crittenden, in regard to some cases in the new 
court relating to the Morrison estate, " I should be glad if they were 
anywhere else, but, being there, I must beg that you will not allow 
the estate to suffer for want of counsel." 

Mr. Hardin's speech in the Legislature had furnished the inspira- 
tion of many co-workers on the stump. Judge Trimble, in taking a 
mortgage on a poor debtor's property, had included the wife's side- 
saddle. The popular uses of such a fact did not escape Hardin's 
observation. He had unearthed, in the Fayette Circuit Court, the 
case of Williamson vs. Haggin (the defendant being the new judge). 
Haggin had contracted to buy Mrs. Williamson a house and lot, but 
stipulated that he was " not to be hastened." He contended that he 
was entitled to his whole lifetime in which to perform his contract. 
Hardin's wit and ridicule found in this a theme suiting his genius. 
"Haggin must be hastened" became a household phrase. The 
Roman Catholic Bishop Flaget, of the Diocese of Bardstown, was 
exceedingly influential not only among his co-religionists, but among 
all of every faith with whom he came in contact. Being of foreign birth 
and a faithful churchman, he paid little attention to the political com- 
motion about him. Mr. Hardin was anxious to enlist him, if ever so 
slightly, among the friends of the old court. He argued the matter 
with the good bishop, appealing to his conservatism, representing the 
new court as an infringement and innovation on the fundamental 
law. Overcome, at last by these arguments: "I am for the old 
court," said the bishop. "I am opposed to all innovations from 
Martin Luther down." 

The New Court party, meantime, hastened to its fall. At the 
election of 1825, sixty-five Old Court and thirty-five New Court rep- 
resentatives were chosen. The Senate was evenly divided. This 
decided majority was partly due to the efforts of the Old Court party, 
partly to the errors of the New Court party, and, in no small degree, 
to the inherent weakness of the latter. It naturally sank with the 
ebbing tide of feeling on which it first arose. The Old Court party 
had not only been successful in the elections, but had adhered to its 
policy of sending strong men to the Legislature. General Thomas 
Fletcher, of Bath ; Daniel Mayes, of Christian ; M. P. Marshall, of 
Fleming; Elijah Nuttall, of Henry; Samuel H. Woodson, of Jessa- 



I40 BEN HARDIN. 

mine ; J. R. Underwood, of Warren ; and W. B. Blackburn, of Wood- 
ford, were among the distinguished names of the Old Court party 
added to the roll of the House. Mr. Chapeze, of Nelson, was suc- 
ceeded by James Allen, Esq. 

The Legislature convened, November 7th, in the midst of great 
excitement. Solomon P. Sharpe, the attorney general, had been 
elected to the House, from Franklin, as a New Court man. The 
contest preceding his election had been marked by a degree of heat 
and bitterness exceptional in the asperity of those times. He was 
strong with his party, however, a superior lawyer, and an accom- 
plished man of affairs. With the aid of his personal popularity, his 
friends hoped to elect him speaker. On the preceding day, a large 
number of the members had already arrived at Frankfort. Every 
stage and steamboat brought fresh accessions. On the chief roads, 
by twos or in larger numbers, members came horseback. The capital 
was alive again, after months of torpor. In this busy gathering, Col- 
onel Sharpe was a prominent figure. He was justly regarded as the 
new leader of the New Court party. On Monday morning (the 7th), 
at an early hour, Frankfort was thrilled and appalled as never before. 
During the preceding night, Colonel Sharpe had been called to the 
door of his residence and stabbed to death by an unknown assassin, 
who had escaped in the darkness. ' His devoted wife, astounded 
and crushed, sank into insensibility when she realized her terrible 
bereavement. 

All questions were dwarfed and all animosities silenced in the 
presence of this ghastly tragedy. The House met and organized. 
The New Court party put forward no candidate for speaker. George 
Robertson was unanimously chosen. The first business was a reso- 
lution requesting the governor to offer three thousand dollars reward 
for the detection, apprehension, and conviction of the assassin of 
Sharpe. Resolutions were also adopted reciting that "Kentucky 
and its Legislature are called upon to mourn the loss of one of their 
ablest and most distinguished citizens." Certain members from the 
southern part of the State, arriving by the Shelbyville turnpike dur- 
ing the forenoon, were not only shocked to hear of the assassination, 
but surprised that it was not mentioned by Jeroboam Beauehamp, a 
young lawyer of Warren county, whom they had encountered and 
talked with a short distance from the capital. Hearing this, Mr. 
Hardin, without a moment's hesitation and on this single fact, pro- 
nounced Beauehamp the assassin. His arrest followed, and the 



LAST DAYS OF THE NEW COURT. I4I 

sequel verified the assertion. He was tried and convicted, and sen- 
tenced to death. 

Beauchamp had been instigated to the deed by his wife, with 
whom, it was charged, Sharpe had maintained improper relations. 
The paternity of a bastard being ascribed to him in the legislative 
canvass, his friends sought to repel it by showing the child of negro 
blood. This circumstance actuated the woman to revenge, and she 
only married Beauchamp on his promise to kill Sharpe. After 
Beauchamp's conviction, and shortly before execution, he and his 
wife attempted suicide. The latter succeeded, but Beauchamp, in a 
semi-conscious state, suffered the penalty of the law. 

A bill was shortly introduced and passed the House repealing the 
reorganization act. In the Senate the vote' on the bill was a tie, and 
Lieutenant-Governor McAfee voting against it, defeated it. After 
this a joint resolution was adopted by the General Assembly provid- 
ing that "a committee of six from each house be raised for the pur- 
pose of conferring and devising such practical measures as to them 
shall seem most expedient, in order to settle the difficulties in rela- 
tion to the Appellate Court." From this committee, as well as from 
others, came various propositions of settlement. To state them, or 
any of them, would reflect no credit on the proposers. An unpleas- 
ant suspicion of trickery was around them all. All were rejected, 
and matters remained as they were. 

The new court sat during the spring term, and part of the fall 
term of 1825. In October it ceased to decide causes, although it 
continued its sittings a short while longer. After the Legislature 
convened that year, Blair, the clerk, closed his office and refused 
either to surrender the records or permit either litigant or counsel to 
have access to them. Thereupon the House passed a resolution 
declaring that it was the duty of the old court, through its sergeant, 
to regain possession of its records. On this Blair guarded his office 
with an armed force. The Legislature adjourned after a session of 
six weeks. The majority in the House published a florid address 
"To the Freemen of Kentucky," in which old court woes and new 
court sins were elaborately enumerated. ' ' On you, " said the address, 
" hangs the fate of the Constitution. Having done all that we could, 
we submit the issue to God and the people." Mr. Hardin was one of 
the signers, but to George Robertson belongs the credit of authorship. 
Although maintaining a precarious existence, the new court was 
doomed. The year 1826 witnessed the final and complete triumph of 



142 BEN HARDIN. 

the Old Court party. In both branches of the Legislature its majority 
was decided. That year, James Clark, the circuit judge who first 
declared the replevin law unconstitutional, was elected to Congress 
from the Ashland district, by nearly one thousand majority. During 
the legislative session that followed an act was passed declaring to be 
in full force all acts pretended to be repealed by the reorganization 
acts. The bill was vetoed by Governor Desha, but passed, notwith- 
standing, and became a law December 30, 1826. The force under 
Blair laid down its arms, and that warlike functionary surrendered the 
records of which he had made conquest. Thus formally and finally 
ended this memorable contest. 

During its existence, the new court rendered seventy-two opinions 
— the first April \g, 1825 ; the last October 28, following. Of these 
Haggin delivered twenty-seven, Trimble seventeen, Davidge fifteen, 
Barry thirteen. Although preserved in 2 Monroe's Reports, they 
have always been regarded as the apocrypha of Kentucky law. 
Deprived of extrinsic authority, their merits have never given them 
currency. It is stated by Collins that the old court sat and decided 
cases simultaneously with the new. This statement is, perhaps, inad- 
vertent. At all events, no opinions were published by the old court 
during the period the new court sat, except for about two weeks. 
The reports of old court decisions show an interval from December 
15, 1824, until October 15, 1825, during which no opinions were 
delivered by it. The last opinion of the new court bears date the 
28th of October. The old court resumed its regular sittings Decem- 
ber, 1825, although the reorganization act was not repealed for more 
than a year afterward. 

Judge Boyle resigned as chief-justice November 8, 1826, to become 
Federal district judge for Kentucky. This position he held until his 
death, January 28, 1835. " As a lawyer," said Judge Robertson, "he 
was candid, conscientious, and faithful; as a statesman, honest, disin- 
terested, and patriotic; as a judge, pure, impartial, and enlightened; 
as a citizen, upright, just, and faultless; as a neighbor, kind, affable, 
and condescending; as a man, chaste, modest, and benignant; as a 
husband, most constant, affectionate, and devoted." Judge Mills 
continued in office until 1828. He then resigned and resumed prac- 
tice at Paris, in which his success was commensurate with his wishes. 
An apoplectic stroke ended his life December 6, 1831. Although 
kind to those with whom he associated, he sought public approval by 
inflexible integrity rather than by popular arts. His success in the 



RESULTS FOLLOWING THE CONTEST. 1 43 

practice rested on his profound knowledge of the law. He was a clear 
and forcible speaker, but a lack of good voice detracted from his ora- 
tory. Judge Owsley resigned simultaneously with Judge Mills. His 
subsequent^ife was in part unpleasantly interwoven with that of Mr. 
Hardin, and will be referred to in future pages. In concluding the 
subject, it may be observed that the influence of the old and new court 
struggle did not end with the overthrow of the latter. Said Duff 
Green in a letter dated Louisville, September 6, 1826, to Governor 
Edwards, of Illinois: "The old and new court question is already lost 
in this State. * * * The new court men, with scarce one excep- 
tion, are for Jackson, and the strong men of the old court party are 
more than divided in his favor." Why the new court men as a body 
took refuge under the banner of the "old hero," is one of those polit- 
ical problems for which many reasons can be given, yet none with 
entire assurance. A quarter of a century later, during the discussions 
attending the proposition for the constitutional convention of 1849, ft 
was observed by an intelligent writer (but ardent Whig) that "the 
political parties in our State took the form and organization which 
they have retained with little variation ever since, in the fierce and 
bitter struggle growing out of the attempt of the Legislature to inter- 
fere with the contracts of individuals, and the firm resistance of the 
courts to this interference. " * * "Whatever names parties may 
have worn since, whatever questions may have agitated or excited 
them, the lines then drawn have never been obliterated, and never will 
be. They are the eternal lines which distinguish the great antago- 
nistic principles in society, which divide the constitutional conserva- 
tive on the one side from the Jacobin and the radical on the other. " :;: 
In so far as this writer traces the organization of parties he is in the 
main correct. However mistaken it was, still it is unjust to attribute 
to the New Court party the principles of Jacobinism or radicalism. 
Republican government was a newer institution then than now. The 
principle that the majority should rule was unthinkingly accepted as 
the essence of liberty. The Legislature represented the people, and 
a majority in the Legislature represented a majority of the people. 
Such was the argument. The division of the powers of Government 
into co-ordinate departments was not practically understood. Consti- 
tutional limitations on the power of a legislative majority seemed 
restrictions on Republican freedom. Questions arising on the distinc- 
tion between the remedy and obligation of contracts have ever been 
difficult and vexatious to the learned. That a party, respectable in 

* An anonvmous writer in " Old Guard." 



144 BEN HARDIN. 

numbers and intelligence, should have fallen into error as to such' 
questions, or as to the just limit of legislative power, at a period when 
the burdens of the debtor class were ruinous, furnishes no just ground 
to charge its members with lack of political integrity, or with being 
intentionally unfaithful to the cause of constitutional government. 
Referring to the "old and new court" controversy, Mr. Hardin, on 
a memorable occasion long afterward, said : "I was in the battle 
from the commencement to the end. I devoted my time in the cause 
of the old judges. I spent my money and shed my blood at the cap- 
itol door in its defense." 



A NEW MAN IN POLITICS. 1 45 



CHAPTER XIII. 

JACKSONIAN LIGHTS AND SHADOWS. 

[T may well be believed that for a score of years immediately after 
1824 the career of every prominent politician in the United States 
was materially affected by the advent into political life of a single indi- 
vidual — and it is positively asserted to be so as to those of Kentucky. 
Ordinarily, nothing is more idle than to speculate as to the course of 
events, had certain prime causes not transpired. But in the year 
1824 nothing seemed more a matter of course than that John Quincy 
Adams should succeed himself, or whether he did or not, that Henry 
Clay would succeed him. The history of the twenty-five years pre- 
ceding assuredly warranted the assumption. Jefferson had been sec- 
retary of State under John Adams, and had succeeded him in the 
presidency. Madison had been secretary under Jefferson and suc- 
ceeded him. Monroe, who had been secretary under Madison, suc- 
ceeded him 'to the presidency.* John Quincy Adams had been 
secretary under Monroe and he, likewise, succeeded his chief. Mr. 
Parton calls it the period of the " secretary dynasty." Clay being 
secretary under Adams, why should he not also attain the presi- 
dency ? 

Clay had represented his country with great honor at the peace of 
Ghent. His career in Congress had been brilliant — eclipsing all rivals. 
He had been the friend and supporter of the preceding administrations 
and enjoyed their favor. He had frequently been chosen to the 
speakership of the House of Representatives, and acquitted himself 
always with credit. His talents and patriotism were conceded on all 
hands. The causes that helped Jefferson, Madison, Monroe, and John 
Quincy Adams to the presidency seemed to have lost none of their 
force in his favor, but, on the contrary, pointed to him as the heir 
apparent. Yet, with the precedents of a quarter of a century and all 
these auspicious omens, the advent of a single man reversed all prece- 
dents and turned the tide of events. That man, it is needless to 
say, was Andrew Jackson. Why this was so is one of the curious 
phenomena of political history. 

,: 'Mr. Hardin, in February, 1816, in a speech in Congress, referred to Mr. Monroe as the "heir 

apparent." 

IO 



1^6 BEN HARDIN. 

What position, it may be asked, did General Jackson occupy at 
that period in the esteem of the American public ? It is remarked 
at the outset that the estimate of him at that day was wonderfully 
revolutionized by subsequent events, and the recollection of these 
latter must be laid aside in order to see him as he appeared when his 
shadow first fell across the luminous pathway of Henry Clay. West 
of the Alleghenies the population was sparse and the country new. 
The ability of Clay and other Kentuckians was regarded as somewhat 
phenomenal by the Virginians, and altogether so by the inhabitants of 
the Eastern States. The wise men came from the East, and that cir- 
cumstance or some other equally occult has always created an impres- 
sion to the eastward that he on whom the sun first rises has peculiar 
o-ifts not vouchsafed to those on whom his beams fall later. Jackson 
lived in a semi-civilized region called by Peter Parley the " far west," 
where it was supposed to be difficult to calculate latitude or longitude. 
When later intercommunication had somewhat overcome the idea of 
remoteness, another descriptive term succeeded — "the backwoods." 
Jackson derived no advantage in the older States from his Tennes- 
sean residence. In 1805 Aaron Burr described him as "once a 
lawyer, after a judge, now a planter, a man of intelligence, and one of 
those prompt, frank, ardent souls whom I love to meet." After this 
Jackson had achieved his military renown. His service and success 
at New Orleans eclipsed all else that he had accomplished. His duels 
and the lamentable affair of the executions of Arbuthnot and 
Ambrister diminished his glory, yet by no means obscured it. He 
was conceded by all to be brave, and the victory over Packenham was 
an exceedingly gratifying event to the American people. Yet Jack- 
son did not reach the standard then applied to presidential aspirants. 
Thomas Jefferson had filled the measure of his countrymen's concep- 
tion of a statesman. He was scholarly, wise, dignified, and experi- 
enced in State craft. As a ruler he had compared favorably with the 
head of any nation in modern or ancient times. Such a contrast was 
unfortunate for Jackson. Yet there were those in that day as at all 
times who were not content with the existing order of things. The 
great army of the opposition was already in the field whose mission 
was not so much to elevate some one, as to pull some other down. 

The inquiry then was, as it has always been with that political con- 
gregation, not who is most competent, or who is really preferred, but 
rather who is most available. It was the idea of availability that 
brought Jackson to the front, rather than because he was of presiden- 



MR. CLAY S MISTAKE. 



147 



tial stature. He himself said in 1821, alluding to a suggestion of his 
candidacy, "Do they think that I am such a d — d fool as to think 
myself fit for the presidency of the United States?" But at the 
approach of the campaign of 1828 there was opposition to Clay, oppo- 
sition to New England, opposition to the Virginia junta, and opposi- 
tion to Calhoun. These odds and ends sought a nucleus and found it 
in Jackson. He had positive strength in the West. His soldiers 
were scattered all over it. His military glory was especially brilliant 
in that quarter, and there his sins of omission and commission were 
looked upon indulgently. 

In the older States his adherents were of the opposition, which was 
for Jackson or any one else to win. Mr. Clay had resented Jackson's 
candidacy in 1824 as a personal grievance. He claimed the presi- 
dency for the West, and Jackson came in for a full and equal share of 
all that claim amounted to. Jackson divided the West and seduced 
Clay's neighbors from their allegiance. The latter regarded it a dan- 
gerous precedent to elevate a military chieftain to the presidency 
merely because he had won a great victory. "I can not believe," 
said he, "that killing two thousand five hundred Englishmen at New 
Orleans qualifies for the various difficult and complicated duties of the 
chief magistracy." But Mr. Clay underestimated the personal abil- 
ity, the political sagacity and power with the people of General Jack- 
son. He entertained a contempt for him. He sneeringly called him 
the "hero" on all occasions. Between the two there soon arose 
irreconcilable and irrepressible conflict. From the very outset this 
conflict was beyond pacification. One or the other had inevitably to 
go down. Jackson and Adams were the candidates in 1828, but the 
defeat was Clay's. 

"The election of Adams by the House of Representatives," says Mr. 
Baldwin, "was turned to account, with all its incidents and surroundings, 
with admirable effect by General Jackson. No one now believes the story of 
bargain, intrigue, and management told upon Adams and Clay; but General 
Jackson believed it, and, what is more, made the country believe it in 1825. 
Adams was an unpopular man, of an unpopular section of the country. 
Crawford's friends were as little pleased as Jackson's with the course affairs 
took. The warfare upon Adams was hailed by them with joy, and they 
became parties to an opposition, of which, it was easy to see, Jackson was 
to be the beneficiary. 

"Clay's ambition or incaution betrayed him into the serious, and, as it 
turned out, so far as concerns the presidency, the fatal, error of accepting 
office — the first office — under the administration which lie called into power. 



I48 BEN HARDIN. 

It was, in all politic respects, a most inexcusable blunder. The office added 
nothing to his fame. It added nothing to his chances for the presidency. 
He was, on the contrary, to share the odium of an administration at whose 
head was a very obstinate man of impracticable temper, coming by a sort of 
bastard process into office, bearing a name which was the synonym of polit- 
ical heterodoxy, and whose administration was fated to run a gauntlet, from 
the start to the close, through a long lane of clubs, wielded by the Forsythes, 
McDuffies, Randolphs, and almost the whole talent of the South. It was 
bad enough to vote for such a man. But Clay might have recovered from 
that. But to vote for him and then take office under him was suicide. A 
mere politician would have played the game quite differently. The Craw- 
ford vote was the vote to conciliate ; and Crawford, in all human probability, 
would not live to be a candidate at the next election. One vote for him 
would not have altered the result ; while had Adams or Jackson been elected 
Clay would have retained his chances for the presidency and been uncom- 
mitted with the advantage of the strength he had conciliated. But instead 
of this he placed himself voluntarily in the minority to bear the brunt of the 
assault of a majority that knew no mercy and would give no quarter. When 
Adams was elected, opposition to him became the rallying cry of all the aspi- 
rants ; and those who were rivals before now became confederates. Clay 
was in all respects too prominent a man, as one of the actors in installing 
the administration, and as a member of it, to escape assault ; and it turned 
out that without the powers or honors of President he had to endure the 
assaults and annoyances of presidential opposition. 

"Those assaults were not slow in coming. The public mind had lain fal- 
low for some years, and was prepared for a bountiful crop of political agita- 
tion. Jackson raised the war cry, and the hills and valleys all over the land 
echoed back the shout. A lava tide of obloquy poured in a fiery flood over 
Clay. It seemed to take him by surprise. The idea that his voting for 
Adams, and then occupying the first office in his gift, seconded by the sup- 
ports which the hypotheses of ' bargain ' found, or were made for it, should 
originate such a charge, seems never to have entered his imagination ; and 
when it came he had the weakness to attempt to strangle it by personal intim- 
idation or to avenge it by violence. 

"The election of Adams, under such circumstances, was the making of 
Jackson. It filled up his popularity. It completely nationalized it. The 
State Rights party, to whom the name and lineage of Adams were enough 
for opposition, turned at once to the man who could best defeat him, and 
saw at a glance who that man was, and the popular sympathy was quickly 
aroused in behalf of the honest old soldier circumvented by two cunning poli- 
ticians." * 

In 1832 Clay sought to retrieve the disaster of 1828, but was 
defeated by Jackson. When the latter finally withdrew from public 

* Party Leaders, page 300. 



HARDIN AND JACKSON. I49 

life, his lieutenants succeeded to the warfare on Mr. Clay, which was 
maintained until age, allied to repeated disaster, completed the con- 
quest — indeed, until "Harry Percy's spur was cold." 

Clay's defeat was the defeat of his friends. It closed to them the 
avenues of Federal preferment. With occasional exceptions, the 
Whig party maintained its ascendancy in Kentucky, but it cost an 
unceasing struggle. Even this hard-bought triumph had its draw- 
backs. The party was full of talent and ambition. The honors that 
the State could confer were all the rewards in reach. Mr. Clay 
expected to share in the highest of these. His loyal friends divided 
the rest. The property was small, the distributees numerous, and 
not unfrequently the Jackson men made spoil of it. 

The points of difference between the characters of Mr. Clay and 
Mr. Hardin were more numerous than the points of sympathy. But 
the latter did exist. The characters of Hardin and Jackson were 
antipodal. Hardin — like Clay — underestimated Jackson's political 
strength. Instead of analyzing it and discovering why he was and 
should be strong, a different course of logic was adopted. It was 
unwarrantably assumed that the people distrusted, and should distrust, 
a military chieftain, and that the election of such a person threatened 
the stability of the Government. "The military principles have tri- 
umphed," said Mr. Clay in 1828, "and triumphed in the person of 
one devoid of all the graces, elegancies, and magnanimity of the 
accomplished men of the profession. "* Jackson's rashness and cruelty 
were exaggerated. His illiteracy, of itself, was supposed to render 
his pretensions absurd. From such points of view (prior to 1828) 
Hardin and the Kentucky Whigs contemplated the hero of New 
Orleans. 

But a political revolution was transpiring, and Jackson was on its 
topmost wave. In 1828 Jackson's vote in Kentucky was nearly eight 
thousand greater than that of Adams, notwithstanding that three 
months before the Adams candidates for governor and lieutenant-gov- 
ernor had been elected. Mr. Hardin's old adversaries, the New Court 
party, had supported Jackson almost solidly — another reason why he 
should not do so. When Jackson had attained the presidency, he rapidly 
furnished arguments to his opponents. He proscribed his enemies 
and rewarded his friends. He fell under the influence and control of 
artful politicians. Obnoxious appointments were made. His self-will 
and ungovernable passion betrayed him into many follies. His admin- 
istration was not a little in contrast to all that had preceded. Party 

* Letter of Mr. Clay to H. Niles. 



i5o 



BEN HARDIN. 



spirit ran higher than ever before. The administration maintained a 
newspaper organ (a practice then introduced) whose diatribes were of 
unparalleled bitterness. The Whigs, or National Republicans, under 
the lead of Clay, and the Democratic, or Locofoco followers of Jack- 
son, were so widely separated by political feelings as to interrupt in 
no small degree the social and business intercourse of communities. 
The intense passion of the leaders passed down the rank and file. 

Mr. Hardin, although a faithful Whig, was, however, not trans- 
ported by his zeal. He, perhaps, excited party spirit in others that 
he himself shared only to a limited extent. He never came to respect 
General Jackson. He ridiculed and denounced him quite sincerely. 




IT Won't Hold Another Drap." 



He was elector for Clay in the presidential campaign of 1832. As 
such, he canvassed the State, increasing his fame for oratory and con- 
tributing to the triumph of his party in the State. 

" I heard Mr. Hardin on Jackson, in 1832," writes Colonel Allen, "and 
I then thought it the most exquisite irony I ever listened to. He drew a 
picture of Jackson's excessive vanity and how the magician of Kinderhook 
(Mr. Van Buren) ministered to it, for his own purposes, and how compla- 
cently the old hero received the ministrations. He depicted the Presi- 
dent occupying an easy chair in one of the private rooms of the White 



THE WHIG PARTY IN KENTUCKY. 1 5 I 

House, a weak, ill-educated, vain old man, in the hands of the wily fox — 
VanBuren — who, being present, played on his inordinate vanity to subserve 
his private ends. 

"There was more truth than poetry in the picture," remarks Colonel 
Allen. "The particular flattery being administered at the time was the 
repetition of the number of high-sounding names his admiring followers 
had bestowed upon him. 'General Jackson,' says Van Buren, 'you are 
the old Roman.' ' Yes,' responds the general, ' I am the old Roman ; if I 
ain't I would like to know who is.' 'General Jackson,' says Van Buren 
again, 'you are the second father of your country.' 'Oh, yes,' answers 
Jackson (who, by the way, was childless), ' I am the father of my country, 
if I am the father of nothing else.' ' General Jackson,' continues the little 
flatterer, ' you are the hero of New Orleans.' ' Yes — oh yes,' says the old 
man; ' I am undoubtedly the hero of New Orleans, if I am not, I would 
like to know who is!' 'General Jackson,' once more says Van Buren, 
' you have filled the measure of your country's glory — your cup of greatness 
is full.' 'Certainly I have,' responds the President with unction, ' it won't 
hold another drap.' "* 

The Whig party had within its fold the best talent of the State. 
The energy of that talent kept it in power there, notwithstanding the 
popular admiration for military glory and the insidious pressure of the 
executive patronage and influence. Save the opportunities afforded 
by a congressional career, Whig politicians were left for the most part 
to deal with local affairs. Possibly there was compensation in this. 
Thus the State enjoyed the benefit of talent that otherwise might 
have shone in the cabinet, graced the supreme bench, or adorned 
diplomatic missions abroad. The State was well governed. The 
standard of political honor was exalted. Questions of constitutional 
law and the science and policy of government were discussed on every 
hilltop and in every valley. The public mind was educated and pub- 
lic sentiment given tone and direction. In the ministrations of that 
political priesthood that kept Kentucky thus faithful to Clay and 
Whiggery, none were more laborious or more potential than Ben 
Hardin. 

♦Letter from Colonel Alfred Allen, of Hardinsburg. 



I$2 BEN HARDIN. 



CHAPTER XIV. 

IN AND OUT OF THE STATE SENATE. 

nR. HARDIN did not seek a return to the Legislature at the 
August election, 1826. The death-stroke had been dealt to 
the new court in 1825, and that tribunal had quietly folded its hands, 
awaiting its end. No prospective question before the General 
Assembly either invited or offered employment for his talents. What 
remained to be done for dismantling the new court could be as well 
accomplished by another. So he turned for the time from affairs of 
state to his private business and professional duties. 

January 14, 1827, death, for the first time, invaded his family cir- 
cle. His son William was a boarding student at St. Joseph's College, 
at Bardstown. That college was a Roman Catholic institution, possess- 
ing an accomplished faculty, and enjoyed, at that time and long after- 
ward, a wide and deservedly high reputation for learning. It was 
then a fair rival for Centre College, of Danville, and Transylvania, of 
Lexington. William, becoming ill of an epidemic fever, soon died. 
He was in his eleventh year, and was assisted in preparation for death 
by the Catholic Church, and died in reception of its spiritual conso- 
lations. The entire college turned out to attend the obsequies. The 
noted Rev. Robert A. Able preached the funeral sermon. These facts 
are related to the author by one who was then present — a twelve-year- 
old boy, who has not forgotten his young friend so long since gone 
to the ' ' other side. " Such an event could not but throw a gloom over 
the household, which time and the consolations of religion only 
availed to disperse. 

In the spring or summer of 1827, Mr. Hardin became a candidate 
for the State Senate, to which he was elected in the August follow- 
ing. The State Senate, in 1827, was a somewhat more august body, 
and enjoyed many functions not vouchsafed to its successor under the 
present Constitution. With the governor resided the power of filling 
all the more important judicial and ministerial offices in the State by 
appointment by and with the advice and consent of the Senate. 
When the governor and a majority of the Senate w r ere in political 
accord, as a rule, the appointees of the executive were confirmed 



"bargain and intrigue." 153 

with little hesitation. When this was not the posture of affairs, guber- 
natorial appointments were sometimes sharply criticised. But even 
when governor and Senate were in harmony, nominations were not 
at all times advised or consented to. Illustrations of this kind will 
presently be furnished. There is some reason to believe that a seat 
in the Senate was not an inauspicious point from which to catch the 
ear of the executive when the latter came to dispense favor. The 
percentage of senators and senators' particular friends nominated to 
office was strikingly greater than fell to any other body or class of 
people. 

The Legislature met December 3d — Lieutenant-Governor Robert 
B. McAfee presiding in the Senate. John Speed Smith, of the 
Administration (or Old Court) party, was chosen speaker of the 
House of Representatives. The relief governor, Joseph Desha, had, 
at the time, one more year to serve. The political storm aroused by 
the old and new court controversy, it is true, was abating. But the 
alignment of parties existing when that struggle was at its height was 
continued upon other issues. National questions were never marked 
by greater heat and asperity, and partook almost entirely of a per- 
sonal character. Incensed by his defeat in 1824, General Jackson 
did not hesitate to stigmatize the chief author of his disaster — Henry 
Clay — with the charge of "bargain and intrigue." The election for 
President, falling into the House of Representatives, between Clay, 
Crawford, Adams, and Jackson, and the contest coming between 
Jackson and Adams, Mr. Clay (who was a member of the House) 
voted and cast his influence for Adams, and the latter was successful. 

When Adams was inaugurated, he appointed Clay secretary of 
State. These events were charged to be the result of an agreement. 
This charge was the chief battle-cry of the Jackson men as early as 
1827. The presidential contest of 1828 was between Jackson and 
Adams nominally, but between Jackson and Clay really, and the 
issue — "bargain and intrigue." Mr. Clay quit his post at Washing- 
ton to vindicate his character in public speeches. In regard to a 
speech he delivered at Lexington on this question, Mr. Webster thus 
wrote him: " In point of merit, as a clear and well-stated argument, 
it is certainly at the head of all your efforts, and its effects on public 
opinion have not been exceeded by those of any political paper, 
I may almost say, within my generation." The substantial portion 
of the New Court party became supporters of General Jackson — 
while the Old Court adherents, with still greater unanimity, followed 



I 54 BEN HARDIN. 

Mr. Clay. In this state of affairs, Air. Hardin became the champion 
of Clay and the Adams administration. At the present session of 
the Legislature no question interesting to modern readers was agi- 
tated, always excepting that perennial matter of the removal of the 
State capital from Frankfort — where it was then located (as it still 
is) — to some other locality. 

Another event of the session deserves passing mention. John 
Allen, in the Senate, offered a resolution to investigate the charge of 
"bargain and intrigue" against Mr. Clay. On what theory the Ken- 
tucky Senate claimed power to make this investigation was then, as 
it must remain, a difficult problem. Mr. Clay thus commented on this 
proceeding : 

"Is it not strange that no member of the court, nor any bystander, should 
have given me any account of my trial before the Senate of Kentucky? 
With the exception of one short letter before it began, and another after its 
commencement, from a friend residing some distance from Frankfort, I have 
received no satisfaction about the extraordinary proceeding. Of the result I 
am yet unaware. 

"I pray, if I am to be hung, I shall be duly notified of the time and 
place, that I may present myself in due form to my executioner. But to be 
serious, was it not a most remarkable proceeding? I never doubted the 
good intentions of my friends, but, in this instance, I am afraid their zeal 
and just confidence in my integrity have hurried them into some indiscre- 
tions. By admitting the investigation, have they not allowed what no man 
of candor or sense believes, that there may be ground for the charge ? At 
this distance it is difficult to judge correctly, but it seems to me it would 
have been better to have repelled the resolution of John Allen with indigna- 
tion. I make, however, no reproaches."* 

Like inventions that plague the inventors, so far from the investi- 
gation injuring the "great Commoner," it resulted in his entire vindi- 
cation, and the gratifying victory of his friends — among the latter, 
Mr. Hardin. 

In 1828, the election of President and governor fell in the same 
year. The terms of each ended in concurrent years, in Kentucky, 
until the new Constitution of 1850. In 1828, Andrew Jackson and 
John Quincy Adams were opposing presidential candidates. Thomas 
Metcalf — "old stone hammer 7 ' — then a member of Congress, was 
the Adams candidate for governor; associated with him, for lieutenant- 
governor, was Joseph R. Underwood. The Jackson ticket consisted 
of William T. Barry for governor, and John Breathitt for lieutenant- 
governor. The latter post was offered by the nominating convention 

'Life of J. J. Crittenden, Vol. I., page 66. 



OWSLEY AND MILLS RESIGN. 1 55 

to Judge John P. Oldham, who declined in favor of Breathitt. The 
result, in August, was the election of Metcalf, by seven hundred 
votes majority, over Barry. For personal reasons unknown, Under- 
wood not only fell behind his chief, but was defeated by over one 
thousand majority. Notwithstanding this apparently equal division 
of political sentiment, in the November following the hero of New 
Orleans obtained a majority in the State of eight thousand votes. 

On the ist of December, the Legislature met in annual session. One 
of the first topics of interest about the State capital was the proposed 
resignations of the "old court judges" — Owsley and Mills. They 
had been the special objects of attack by the New Court party. 
The charge was made that they held their offices in defiance of the 
popular will. This charge from the hustings was especially burden- 
some and annoying to the successors of the "Old Court" party. To 
neutralize it, came the resignations referred to. It was undoubtedly 
supposed that the resigning judges would be renominated and 
promptly confirmed. Thus would it be demonstrated that the old 
judges had not defied the will of the people by retaining their places. 
The following extract from a letter dated December 3, 1828, from Mr. 
Crittenden to Mr. Clay, illustrates the situation as it then existed : 
" Our judges of the Court of Appeals — Owsley and Mills — have this 
day delivered their resignations to the governor. This will deprive 
the agitators of one of their principal topics. I think they will both 
be renominated. Owsley will be confirmed — Mills will be strongly 
opposed. He is, unfortunately, very unpopular."* Both were 
promptly renominated by Governor Metcalf, and both as promptly 
rejected by the Senate. Thereupon the governor sent to the Senate 
the names of George Robertson, his secretary of State, and that of 
Joseph R. Underwood, the late unsuccessful candidate for lieutenant- 
governor. These were confirmed. It seems that the office was not 
of Robertson's seeking. He felt himself to be (as he said) " a self- 
sacrificed victim of party policy." 

The term of Richard M. Johnson, United States Senator, was soon 
to expire, so December 23d the two houses convened in joint session 
to choose his successor. George M. Bibb, chief-justice of the Court 
of Appeals, was elected over Dr. Burr Harrison, of Bardstown, the 
vote being eighty to fifty-three. Bibb had been of the New Court 
party, and was an adherent of General Jackson. The desire to remove 
him from the Appellate bench that he might be replaced with one 
of different constitutional views may have affected his success. 

* Life of J. J. Crittenden, Vol. I., page 71. 



156 BEN HARDIN. 

January 14, 1829, the governor nominated Judge George Robert- 
son for chief-justice in place of Bibb, but the Senate rejected the 
nomination. Mr. Hardin was taxed with this result. Mr. Chambers, 
a Kentucky congressman, writing to Mr. Crittenden from Washing- 
ton, said: "We have letters communicating the rejection of George 
Robertson's nomination to be chief-justice. Ben Hardin is just the 
man I took him for." 

The subsequent kind relations between Mr. Hardin and Judge 
Robertson render uncertain the cause of this opposition. On the 
rejection of Robertson the names of Richard A. Buckner, John J. 
Marshall, and Joseph R. Underwood were sent in succession to the 
Senate and all rejected "on political grounds," says Collins. If this 
latter be the true theory Mr. Hardin could not have opposed them as 
he and they were in political accord. Failing thus to present an 
acceptable nomination the governor suffered the chief-justiceship to 
remain vacant for a year. When Judge Robertson was again nomi- 
nated at the following session, he was confirmed without further hesi- 
tation or difficulty. 

At the August election, 1830, the Whigs secured a small majority 
in the Legislature on joint ballot. This was important to that party 
as the period approached for electing a successor to Judge John Rowan, 
then United States Senator, a distasteful Democrat, extreme in his 
partisan views. He was especially disliked by Mr. Clay. The latter 
in a letter to Judge Brooke, commenting on the complexion of the 
Legislature, significantly observed that " Mr. Rowan will be permitted 
to retire." 

In January, 183 1, the Legislature for three days unsuccessfully 
attempted to elect a United States Senator. The highest votes cast 
for different candidates were as follows: John J. Crittenden, sixty- 
eight ; Richard M. Johnson, sixty-four; Charles A. Wickliffe, forty- 
nine ; John Breathitt, sixty-six. After fifteen ballots the election was 
postponed to the following session. It was supposed that the suc- 
ceeding August election would at least remove some of the existing 
obstacles to a choice. 

A noticeable act of the Legislature in the year 1830 was that char- 
tering a company to build a railroad from Lexington to one or more 
points on the Ohio river with a capital stock of $1,000,000. This was 
the first railroad charter in Kentucky. Such enterprises were then 
unknown west of the Alleghenies. Collins relates that in March of 
this year a ' ' model of a railway, locomotive, steam engine, and car, 



CANDIDATE FOR STATE SENATOR. I 57 

constructed by Joseph Bruen, of Lexington, was exhibited in Frank- 
fort, and the belief created that carriages and heavy loads could be 
drawn as easily and certainly by steam power as boats could be pro- 
pelled by the same power." 

Mr. Hardin was a candidate for re-election to the Senate in August, 
1 83 1. Stillwell Heady, of Spencer county, was his competitor. 
Heady had served in the lower House during the term Mr. Hardin 
was in the Senate, had acquired some parliamentary experience, was 
a shrewd man and an adroit campaigner. He was, to a considerable 
extent, addicted to conviviality, and when in a jolly mood sang a 
good song. One of his favorites (rather paradoxically) on such occa- 
sions was, "The Old Oaken Bucket." He entered industriously into 
the canvass, delivering public addresses throughout the district, of 
which Mr. Hardin was the text. That the latter was not idle, may 
be judged by the following incident: On one occasion Heady had an 
appointment for speaking at Boston, in Nelson county. He was 
promptly on hand, but his opponent was absent. He proceeded with 
his speech, in which he arraigned Mr. Hardin for failing to attend his 
appointments, and also for absence from his seat and failure to vote 
in the Senate on some measures when the yeas and nays were 
demanded. On these points he dilated at length, and, as he fancied, 
somewhat to his opponent's cost. The orator, in delivering his address, 
occupied a porch fronting on the roadside, and just as he was conclud- 
ing, somewhat to his surprise Hardin rode up. The dress of the lat- 
ter consisted of roundabout and trousers of white linen, or what had 
been white before being bespattered and soiled from rapid travel, 
muddy roads, and a perspiring horse. As he rode up he threw one 
leg over his saddle and slipped off his horse in front of Heady, with 
a humorous smile on his face. When the latter concluded, Hardin 
began his speech thus : "Gentlemen, the Good Book tells us that 'he 
that cometh at the eleventh hour shall receive the same wages as he 
who cometh at the third hour,' " on which rule of compensation he 
insisted. He then said he had not had the pleasure of listening to 
the speech of his competitor, but he would, notwithstanding, proceed 
to answer it. 

It was true he had not voted on every measure before the Senate 
during his term, but for that he had an explanation and excuse. He 
had a large law practice when he was elected, as his fellow-citizens well 
knew. His duty to his clients was imperative. He had many cases 
in the Court of Appeals at Frankfort. When one of those cases was 

* Collins' History of Kentucky, Vol. I., page 36. 



158 BEN HARDIN. 

reached, he was compelled to temporarily vacate his seat in the Senate 
and attend to it. But when not thus engaged by professional business 
he was always at his post. Not so, however, with Mr. Heady. 

He was frequently absent from his seat in the House when the yeas 
and nays were called. He was not a lawyer, and could not plead duty 
to his clients for his absence. "Where, gentlemen," proceeded Mr. 
Hardin, "where would you find him on such occasions? By going to 
the door of some neighboring grog-shop and listening you could hear 
the voice of the gentleman warbling, more or less musically, the 
words : 

"The old oaken bucket, the iron-bound bucket, 
The moss-covered bucket which hangs in the well." 

Mr. Heady was defeated, but had the honor of succeeding Mr. Har- 
din, on the resignation of the latter in 1833. 

The result of the August election, 1831, it was believed, assured 
Mr. Crittenden's election to the United States Senate. But this rea- 
sonable expectation on the part of his friends was doomed to disap- 
pointment. The attitude of Mr. Clay before the country and his 
connection with important public questions was such as to produce a 
general desire that he should be in Congress. In October Mr. Web- 
ster thus wrote Mr. Clay on the subject: " You must be aware, dear 
sir, of the strong desire manifested in many parts of the country that 
you should come into the Senate. There is certainly a strong feeling 
of that sort all along the Atlantic coast." " Everything valuable in 
the government," he added, " is to be fought for, and we need your 
arm in the fight." Before this letter arrived from Boston, Clay had 
written to his friend Brooke : "lam strongly urged to go to the Sen- 
ate, and I am now considering whether I can subdue my repugnance 
to the service." 

Mr. Crittenden, with patriotic self-abnegation, concurred with the 
views of Mr. Webster, and so waived his aspirations. "Had he 
pressed his own claims," said Thomas F. Marshall, "had he been sel- 
fish, it is certain beyond question or controversy that Mr. Clay could 
not and would not have pushed his younger friend and second from 
the place for which he had contended. 

" He recognized Mr. Clay," Marshall continues, " as the great head 
of the opposition. He deemed his presence in the Senate necessary 
to its organization and success. In his judgment Mr. Clay ought to 
have been the man. He silenced and satisfied his own devoted friends 
and gracefully and voluntarily yielded to the national leader a seat which 



THE FRIEND OF LEARNING. 



'59 



that leader would never have claimed, and for which he could not, 
without indecency, have contended with a friend." ::: November 7th 
the Legislature convened in extra session for the election of a United 
States Senator. On the third day of the session it accomplished its 
purpose by electing Henry Clay, who received seventy-three votes to 
sixty-four cast for Richard M. Johnson. In this vote Mr. Hardin was 
recorded for Mr. Clay. 

In November, 1S20, the Legislature passed an act "to establish a 
public library at tne seat of Government." The secretary of State, 
under advice of the governor, was authorized to sell or exchange such 
decisions of the Court of Appeals, acts of assembly, or other books of 
this Commonwealth as might be deemed expedient, and out of the 
proceeds purchase such other books, charts, or maps as were thought 
proper. It seems doubtful as to the motive of this act, whether 
prompted by a desire to accumulate a library or merely to convert 
superfluous or useless books on hand into something more desirable. 
While now a respectable collection, the early growth of the State 
library was slow. To Mr. Hardin it owed its first substantial impetus. 
"During the session of the General Assembly of 1832-3,'' writes 
George A. Robertson, " I observed some persons handling the reports 
(of decisions) then in the State House in such manner as to suggest that 
they were insecure and liable to be taken away, as no one seemed to 
have any special care or custody of them. I mentioned these facts 
to Mr. Hardin, who was then a member of the State Senate. Shortly 
afterward he prepared and procured the passage of an act creating the 
office of State librarian, and then insisted on my running for it. I 
yielded to his solicitations and was chosen, and retained the office by 
annual elections for seventeen successive years." 

The act in question was passed January 25, 1833. It minutely 
defined the duties, rights, and authority of the librarian, but its most 
important provision was the appropriation of $2,500 to be expended 
during the period of five years in the purchase of books for the library. 
These facts are related to show, as they do show, that in an unbook- 
ish period and locality Mr. Hardin was a practical friend of learning. 

In 1832, Mr. Clay and General Jackson met in a death-grapple for 
supremacy in American politics — as presidential candidates. The 
struggle was a heated one throughout the country, but nowhere more 
animated than in Kentucky. How equally the contending parties 
were matched was shown by the result of the gubernatorial contest 
decided in August. Breathitt, the Jackson candidate for governor, 

* Speeches and writings of T. F. Marshall, page 423. 



l60 BEN HARDIN. 

defeated Buckner by twelve hundred majority, while Morehead, the 
Clay candidate for lieutenant-governor, received a majority of twenty- 
five hundred votes. Breathitt was the last Democratic governor for a 
period of twenty years — which fact caused an exultant Whig to speak 
of his success as the " last gleam of the setting sun." 

Mr. Hardin, as observed elsewhere, was a candidate for elector on 
the Clay ticket and as such canvassed the State thoroughly and vigor- 
ously. Such persons as yet survive who heard his speeches in that 
campaign — mere boys then — speak of them as marvelous in power and 
charming beyond description. Notwithstanding the equivocal result in 
August, in November Clay carried the State by over seven thousand 
majority. The unswerving fidelity of his own State, however, did not 
avail to avert his defeat — complete and overwhelming. His despond- 
ency over the result could not have been greater if a foreign enemy 
had overturned the government and subjugated its people. In the 
estimation of his friends Mr. Clay was as superior to General Jackson 
as Hyperion to a satyr. That the satyr should have vanquished 
Hyperion was the climax of calamity. A leading newspaper of the 
day, so far from dealing in hyperbole, very correctly expressed the 
feeling of the Whig party in its allusion to the assembling of the presi- 
dential electors at Frankfort in January, 1833 : 

" It was solemn and impressive — to us it had a melancholy solemnity — 
it was the only voice west of the tall and pillared Alleghenies that said ' my 
country ' — it was the only voice from the broad and fertile valley of the 
Mississippi that said ' where liberty dwells, there shall be my country.' 
When the votes had been recorded — each man rising and voting in a distinct 
and impressive voice — the carrier selected, and the certificate signed, the 
College was dissolved by the chairman, Benjamin Hardin, Esq., in a digni- 
fied and eloquent address, in which he expressed his gratification that Ken- 
tucky was still independent of power and patronage, and that her natal star 
beamed as brightly on her, at this momentous period, as when the single- 
minded, hardy pioneers first pitched their habitations in the western wilder- 
ness. He said if the fair fabric of the Union must fall, he was rejoiced that 
Kentucky was free from the foul stain of contributing to that fall, and that 
amid the universal ruin Kentucky would hover on its brink, like a star upon 
the horizon, the last to sink ; and as she went down, the broad pennon which 
her brave sons had so often and so gallantly defended would be seen waving 
aloft, bearing the inscription : ' The cause of our country — Liberty 
forever! ' " 



THE MYSTERIOUS STRANGER. 



I6l 



CHAPTER XV 



HOUSEHOLD GODS. 




ARDSTOWN ranked very high, in a social way, from its earliest 
years. Its people were refined, intelligent, wealthy, and hos- 
pitable. Its excellent schools attracted many persons from abroad — 
students seeking the advantages afforded by its learned faculties, and 
parents who sought a temporary 
residence near their children. 
Southern planters found refuge 
there, in summer, from the tropi- 
cal heat and the diseases that 
scourged the sugar and cotton 
States. Fifty years ago, it could 
well claim to be considered a 
social center. The belles of Nel- 
son reigned not less imperiously 
in Frankfort and Washington 
than in Bardstown, and some of 
them, by their wit and beauty, 
graced courts abroad. The town 
had not only refined and wealthy 
society, and citizens noted for 
talent throughout the country, 
but it boasted of distinguished 
visitors. 

A Frenchman, a stranger, 
came to Bardstown, some sixty 
years ago, and remained for several months, lavishly expending money 
on his personal wants, but maintaining the profoundest mystery as to 
whence he came or who he was. He finally disappeared, leaving the 
mystery of his identity unsolved. A strong suspicion existed that he 
was a prince in cog. It is related of this mysterious foreigner that, 
one day, he procured a horse of his host and rode out of town. It 
was not long before the horse was seen returning at top speed. The 
prince (if such he was) had abdicated the reins, but sat firmly poised 

1 1 




The Return of the Prince. 



I 62 BEN HARDIN. 

in the saddle grasping the "horn." He was cool and serene, but 
hatless, and it did not escape observation that the top of his head 
grazed the lintel as his coursing steed, full tilt, entered the stable 
door. 

The foregoing is related as it was told ; but, prince or no prince, 
there were many royal fellows about Bardstown who drank wines and 
liquors as well as wagered money on games in princely fashion. When 
Mr. Clay came there in 1829, it is said that after making one of his 
grand speeches he, with a company of boon companions, wore out the 
night around the gaming-table — a circumstance in keeping with the 
pronounced tastes of the great statesman. About that period there 
existed a peculiar custom at Bardstown, long since passed away and 
now well-nigh forgotten. Once or twice a month, or possibly more 
frequently, the chief hotel gave an entertainment known as a "buck 
supper," so called because venison was a chief item of the spread. 
None but gentlemen were admitted on these occasions, who were 
charged a fixed price per head for their fare. The entertainment 
embraced eating, drinking, and gaming. Well nigh everybody 
attended, from the dignified and wealthy lawyer, with superfluous 
funds, to the hard-working mechanic who subsisted on his income 
from daily labor. With the rest of his fellow-townsmen Mr. Hardin 
attended "buck suppers. " 

On one of these occasions there was present a young man named 
Hart, recently arrived in the town, and somewhat a stranger. He is 
described as a taciturn, modest, gentlemanly person who dressed well 
and was slow in getting acquainted. He sat for some time alone, 
silently observing the company. Not far away sat Judge Rowan at 
a table with others engaged in a game of cards. Luck was against 
the judge, causing him to become nervous and irritated. Finally 
turning to the unconscious Hart, of whose name he was ignorant, in 
his most lordly and mellifluous tone, "Mr. Jenkins," said he, "it 
greatly embarrasses me to have any one behind me looking into my 
hand, and you will greatly oblige me by moving your chair." The 
surprised stranger, without a word, moved his seat, but for years after- 
ward bore his "buck supper" name of "Jenkins."' 

The town was sought by princes, as has been seen, but was not 
neglected by prophets. Some years prior to the coming of the French- 
man before alluded to, Lorenzo Dow, the famous and eccentric preacher, 
in wandering over the world, fell into Kentucky. He complains in 
his "Diary" of having been obstructed in his mission by Methodist 



GENERAL PRESTON 's RECOLLECTIONS. 1 63 

preachers ; "but," says he, "God opened my way by means of a Bap- 
tist at Bardstown." 

Referring to a somewhat later period General William Preston 
speaks very entertainingly of his own advent to Bardstown and Air. 
Hardin's connection therewith : 

" I have a very vivid recollection of my first acquaintance with Mr. Har- 
din. He had been employed by my family in an important law case which 
created an intimacy resulting in sending me to St. Joseph's College at Bards- 
town, it being arranged that I should become a member of his family, and 
be subject to his control — the same as one of his sons. This was not an 
uncommon arrangement in those old-fashioned times in Kentucky. This 
occurred about the year 1832. At that time Mr. Hardin was in the prime 
of manhood and at the height of his reputation. From personal appear- 
ance he would have been taken to be from forty-five to fifty years of age. I 
was then about sixteen. 

" I well remember the ride from Louisville to Bardstown, on horseback, 
during a heavy snow-storm, and my odd reflections on the journey in refer- 
ence to my guardian. Mr. Hardin was mounted on a strong horse; and 
arrayed in an old drab overcoat, with capes, wearing leggins and great buck- 
skin gloves, he seemed entirely indifferent to the piercing cold. I was rather 
fashionably and thinly clad, and suffered much but made no complaint, and 
finding the company of old Jo, a colored companion die voyage, more congen- 
ial, slumped through the snow while Mr. Hardin, fifty yards ahead, muttered 
and spoke to himself as he rode along and gesticulated wildly in the winter 
air. I was quite amused at the scene and circumstance. I maintained my 
place in the rear until we came to a farm-house where he roused up an old 
political friend, who had once been a justice of the peace. In a few moments 
we were enjoying a blazing fire, and shortly hot coffee and a generous Ken- 
tucky supper. During all this period I had remained silent, from a suspi- 
cion that my guardian had a bee in his bonnet or had acquired inspiration 
from the Kentucky remedy during his ride without offering me or Jo a drink. 
Very soon after he had removed his outer covering, and as his grey eyes 
sparkled merrily in the light of the blazing fire, his healthful cheeks showed 
a man habitually temperate. 

" For an hour he regaled his host with rare country gossip ; the news of 
the courts ; talked about the lawyers, all in a genial way that would have 
delighted Robin Burns. After ordering me to bed and seeing that I was 
sufficiently covered, he and the host continued their conversation, while I 
soon became unconscious of my surroundings. That night will never be 
forgotten ! The next day we arrived safely at Bardstown, where Mr. Har- 
din was received by his family and children in a hearty way in a handsome 
house, where all was cheerful and happy. The impression made by this 
domestic scene was much at war with my preconceived opinions of his 



164 B E^ T HARDIN. 

character, and his house proved a happy home for me for nearly two years. 
At that period Mr. Hardin had a striking presence. He stood about 
six feet high, shoulders rather drooping, with a powerfully knit frame. His 
carriage was rather ungraceful and slouchy. I was told that he was of 
remarkable activity, and could, in three straight jumps, leap thirty-three feet, 
backward and forward. His manners were not polished, but were those of 
a country gentleman, careless in dress, but not ill bred. The face was 
broadly and massively marked, with a noble forehead — gray, glittering eyes 
— long and flexible nose, a large mouth — capable of every expression — 
probably excelling in the expression of irony, contempt, or ridicule, before 
which none of the chief men of Kentucky could stand for a moment with- 
out uneasiness. But under these rustic manners, he had an extreme vener- 
ation for everything that was grand or heroic, and a hearty appreciation of 
all that was refined in sentiment and manners." 

Mr. Hardin was most happy in his marital relations. His marriage 
had been one of affection, the result of an attachment formed in youth. 
When he married he set out from the comfortable hom6 of his father- 
in-law, Colonel Barbour, in Washington county, journeying to his 
new location at Elizabethtown. The roads were rough and lonely in 
those days and travel wearisome. He observed during the journey 
that his young wife showed signs of fatigue, which caused him some 
solicitude. "Betsy," said he, "do you wish you were back at your 
father's again?" To his relief she preferred to be with him, and so 
it was evermore. All her days she was a devoted wife, the genial 
light of the household, making glad all hearts about her. 

Their oldest child, Lucinda, was born at Bardstown in 1809; their 
youngest, Sally, in 1822. Two more girls, Emily and Kate, and three 
sons, James, Rowan, and William, were added to the household 
between these dates. Of William's death in 1827 mention has already 
been made.* 

In 1830 Lucinda Hardin entered her twenty-second year. Her 
father had always been fond of her, and in many respects treated her 
as a companion. She was handsome and sprightly, and had a large 
share of all womanly graces. She often accompanied Mr. Hardin on 
the circuit, and had made her entree into society at the State capital 
during his service there. Several years before she had met a young 
lawyer and politician of Hardin county, a young man of excellent 
family, who already gave evidence of energy and talent. Simultane- 
ous with their meeting he became her suitor, and none was ever more 
devoted. The patriarchal wooing of seven years elapsed, however, 
before she rewarded his affection with her hand. Thus, in 1830, 

-'Chapter XIV. 



JAMES AND ROWAN HARDIN. 1 65 

Lucinda Hardin, as the bride of John Larue Helm, journeyed the same 
road her mother had traveled more than twenty years before, and 
found a home in the town where her father had begun his career before 
she was born. 

Mr Hardin afforded his children ever}- facility for acquiring an 
education. All of them attended the excellent schools at Bardstown. 
James received the appointment of cadet at West Point and graduated 
with credit at that institution. Rowan, quicker, though less solid 
than his brother, was proficient in his studies, though of such a volatile 
nature as to require " looking after." 

On one occasion in his youth, with a view of curbing his impulsive- 
ness, Mr. Hardin put him to work on the farm. Whereupon Rowan 
fled and was a fugitive a short while. Not long after this Mr. Hardin, 
on his way to the Breckinridge court, stopped at Mrs. Helm's in 
Hardin county. Mrs. Helm, who had heard of it, inquired how 
Rowan came to run off. Mr. Hardin explained that he had put him 
out with the hands in the fields and that he had run off to avoid work. 
Mrs. Helm, in strong terms, expressed her sympathy with Rowan, 
and thought it shameful that a man of Mr. Hardin's wealth should 
make so bright a boy do common labor. "Madam," replied Mr. 
Hardin, " I believe in teaching a boy to work — teaching him how to 
earn his living by his labor — teaching him the value of money, so 
that if he loses his patrimony he will be able to maintain himself by 
his own exertions." But Rowan never acquired a taste for the details 
of agriculture, notwithstanding this fatherly wisdom on the subject. 

It is a venerable grayhead that writes the author that, about 1830, 
Kate and Sally were bright, attractive little girls, much admired by 
their boy associates, including the writer. 

James and Rowan, when at home, were the life of the household. 
Their powers of conversation and their sallies of wit, as manifested in 
the family circle, afforded their father not a little secret delight. 
James, in person, was not so tall as his father, but slender. Rowan 
was not stout, but more substantial than his brother, though less in 
height. Both were good story-tellers, but Rowan had the more 
exuberant humor. Their parents were not seldom the victims of 
their jests. Once Mr. Hardin was leaving home to attend court. 
His horse was saddled at the gate, and ready for him to mount. 
Rowan slipped out, and lengthened the stirrup-leathers several inches. 
Mr. Hardin proceeded to mount but was unable, when in the saddle, 
to reach either stirrup. Suspecting some of the servants of having 



l66 BEN HARDIN. 

ridden his saddle, he was proceeding to use emphatic language, when 
Rowan, who was standing by, silently and secretly enjoying it, sug- 
gested that he had recently seen James using the saddle. Mr. 
Hardin, not perceiving the absurdity of the insinuation, half solilo- 
quized : "Well, I'll be d — d, if I ever realized the length of that 
boy's legs before." j 

On another occasion, Mrs. Hardin related, at the table, a some- 
what amusing story as to what had befallen a certain Mr. Smith. 
Before the meal was over, Mrs. Hardin, forgetting that she had once 
told it, repeated the story again. During the next meal, James asked 
Rowan if he had heard that story about Mr. Smith? No; he had 
not, but was anxious to hear it. Thereupon, James repeated it with 
great minuteness of detail, whereat Rowan evinced an unusual degree 
of enjoyment. In a few minutes, Rowan, innocently, and, as though, 
to some extent, to repay the pleasure the story of James had afforded, 
inquired of the latter if he had heard that amusing circumstance about 
Mr. Smith. James never had, but was eager to do so. Rowan 
repeated the story just as James had done, convulsing the latter. At 
intervals of a few minutes, the adventures of Mr. Smith were repeated 
alternately with precisely the same demonstrations, until stopped by 
Mr. Hardin with the suggestion that the " two d — d fools seemed to 
be crazy." 

Not far from 1830, and for many years afterward, Mr. Hardin 
enjoyed a high degree of worldly prosperity. He carried on farming 
operations extensively, having a large farm and numerous slaves. 
Abundant harvests blessed the labors of the husbandman. But it was 
from his extensive law practice that his chief gains arose. He found 
constant and pleasant enjoyment in adding to a very respectable 
fortune — respectable for that day and locality. 

In 1832 cholera visited Kentucky, being attended with great mor- 
tality -and causing universal alarm. Abating during the winter, it 
returned the following spring more malignant and fatal than before. 
Bardstown was decimated, notwithstanding it was abandoned on the 
first alarm by almost every one who had ability to escape. Mr. Hardin 
was one of the few among the wealthier class who remained, and with 
his family helped in nursing the sick and burying the dead. His 
household was rewarded for its fortitude and charity — the pestilence 
passing it by unscathed. 

As his daughters approached their twentieth year, excellent young 
men sought, wooed, and won them. Emily married Dr. Robert A. 



A HAPPY HOUSEHOLD. 1 67 

Palmer, of Washington county ; Kate was married first to Mr. Howell, 
and on his death to Thomas W. Riley, a prominent lawyer of Bards- 
town, and Sallie was married to George Dixon, a Kentuckian residing 
in the West. James and Rowan attained manhood and married early 
and happily. Thus the family circle was, for awhile, much reduced. 
Before its various members had thus gone their several ways it was 
a happy household. Guests testify, not only to the hospitality they 
received, but to the harmony and affection prevailing in the family 
circle. When all were gathered it was a continual ' ' feast of reason 
and flow of soul." While Mr. Hardin encouraged his children to 
talk, and was a pleased and delighted listener himself, yet he contin- 
ually gave himself to free and familiar discourse beneath the roof-tree 
of home. His own conversation was at the same time instructive and 
entertaining. ' ' Often, " said his daughter (Mrs. Riley) ' ' when others 
had discussed a subject without making it entirely plain, a few words 
from him made it so clear that ' it was as if the newly-risen sun had 
suddenly burst with full effulgence on what was before uncertain and 
obscure.' " 






l68 BEN HARDIN. 



CHAPTER XVI 



THE PIONEER BAR, 



AFTER the admission of Kentucky into the Federal Union, A. 
D., 1792, the influx of population was wonderfully rapid. By 
far the larger portion came from the Old Dominion. As a rule these 
were a better class than those from elsewhere — brought more charac- 
ter, more intelligence, enterprise, and refinement, and more worldly 
gear. Many young lawyers already at the bar in Virginia were 
tempted to Kentucky to represent land owners living abroad. Others 
were drawn thither by accounts of rich fields of litigation, and not a 
few by the opportunities for a political career. 

Many Virginia youths studied for the bar after coming to the State. 
It may be confidently assumed that in earlier times the vast prepon- 
derance of the legal profession was Virginian born and bred, or 
descended from that stock. A cursory glance at these pages and the 
various histories of Kentucky will corroborate the statement. Thus 
it came to pass that the tone and spirit of the Virginia bar, to a 
very marked degree, were early injected into that of the newly- 
admitted State. 

The better characteristics of the early bar, it is feared, have not 
been altogether preserved to later times. There was a courtliness 
and a dignity, it is true, that could not survive in the bustle and hurry 
of a utilitarian era. But this loss is slight, compared to what is 
feared to be a deterioration in more substantial qualities. The ancient 
lawyer, behind all his dignity and vain-glory (if you please), had solid 
virtues. He was not only learned in the books, but deeply and 
soundly conversant with legal principles. Instead of hunting prece- 
dents that were meager, he reasoned out the points of contention by 
a resort to fundamental principles. He, of necessity, was more dili- 
gent and accurate, since mistakes could not be so readily cured by 
amendments under the system of pleading and practice then as now. 
Referring to an earlier period than the beginning of Mr. Hardin's 
career, Edmund Burke testified in the British Parliament, in an 
emphatic way, to the learning and ability of the American lawyers of 



THE GOLDEN AGE OF THE LAW. 1 69 

that time, their sterling patriotism, and their skill in drafting the great 
state papers which were then promulged, and which yet command 
the general admiration of refined and cultivated minds in all countries. 

" It is a remarkable fact," says an American writer, " that the great men 
of every State in the Union were those who figured about the time of the 
organization and the settling down of their several judicial systems into defi- 
nite shape and character. Not taking into account the revolutionary era, 
unquestionably the most brilliant intellectual period was that which succeeded 
the turmoil, embarrassment, and confusion of the Revolution, and of the 
times of the civil agitation and contention next following, and out of which 
arose our present Constitution. The first thing our fathers did was to get a 
country, then fix on it the character of government it was to have, then to 
make laws to carry it on and achieve its objects. The men, as a class, who 
did all this were lawyers. Their labors in founding and starting into motion 
our constitutions and laws were great and praiseworthy; but after setting the 
Government agoing there was much more to do, and this was to give the 
right direction and impress to its jurisprudence. The statutes of a free coun- 
try are usually but a small part of the body of its laws; and the common law 
of England, itself but a judicial enlargement and adaptation of certain vague 
and rude principles of jurisprudence to new wants, new necessities, and exi- 
gencies, was a light rather than a guide to the judges of our new systems, 
called to administer justice under new and widely-different conditions and 
circumstances. The greatest talent was necessary for these new duties. It 
required the nicest discrimination and the soundest judgment to determine 
what parts of the British system were opposed to the genius of the new Con- 
stitution, and what parts were inapplicable by reason of new relations or dif- 
fering circumstances. The great judicial era of the United States — equally 
great in bar and bench — was the first quarter of this century. And it is a 
singular coincidence that this was the case in nearly every State, if not in all. 
Unquestionably there is something in the atmosphere of a new people which 
refreshes, vivifies, and vitalizes thought, and gives freedom, range, and energy 
to action." * 

This language is quoted because believed to be justly applicable to 
the bar of the State in Mr. Hardin's time. Chancellor Bibb, himself 
an illustrious lawyer of his day, was of like opinion : " I have heard 
Webster, Sergeant, and White, of Tennessee. Wirt, Webster, White, 
and Ogden are the ablest lawyers, and Walter Jones should also be 
ranked among the first. Emmett I have not heard, but his reputation 
is high. After all, I have not been convinced that the bar of Ken- 
tucky does not contain as much talent and force as any other bar in 
the Union. "t Not only was it a body distinguished for dignity and 



-Flush Times, by Daldwin, page 225. t Letter to J. J. Crittenden. 



170 BEN HARDIN. 

talent, but chivalrous courage was a marked characteristic. Personal 
cowardice was as odious among the bar of the State as among the 
hunters who had fought the British and the Indians. Hence, insult- 
ing language and the use of billingsgate were too hazardous to be 
indulged where a personal accounting was a strong probability. Not 
only did common prudence dictate courtesy among members of the 
bar, but an exalted spirit of honor and well-bred politeness largely 
prevailed. The word of counsel to his adversary was his inviolable 
bond. The suggestion of a lawyer as to the existence of a fact was 
accepted as verity by the court. To insinuate unprofessional conduct 
was to impute infamy. 

It was the duelling age when false sentiments of honor were cur- 
rent, but despite this criminal folly, good came of it. Men were more 
respectful and self-respecting when a departure cost blood or life. De 
Tocqueville, referring to that era, called the bar the ' ' aristocracy of 
America." The statement was nearer the truth when uttered than in 
later times. 

It was an aristocracy not based exclusively on either birth, talents, 
fortune, power, or position, but to some extent on some or all of these. 
When manliness and personal honor were more valued, their possessor 
congratulated himself on an honest and unstained pedigree. He felt 
himself a leader in his community, entitled to its loyal respect, and at 
the same time answerable to public opinion, and subject to its penal- 
ties. With, this constant obligation resting on him, it is not wonder- 
ful with what fortitude and self-denial, with what unflinching integrity 
the old time-worthy trod the narrow path of honor and duty, leading 
often through obscurity and poverty, when on his right hand and on his 
left were broad roads that would have led to an ephemeral fame, or a 
surreptitious fortune. Such a tone and spirit largely prevailed at the 
Bardstown bar when Mr. Hardin was admitted. Its members were 
the leaders of the profession for many counties around. With many 
moral and ethical attributes they had, in addition, a wide renown 
for learning, skill, and eloquence. No bar in the State was equal to it 
— none surpassed it west of the Alleghenies. To associate and com- 
pete with such men was (as the phrase goes) a liberal education. 
These legal Goliaths were the awe and terror of neighboring bars. It 
was in part to shake off this trepidation that Hardin changed from his 
first location. Moral giants, like their physical prototypes, are not so 
dreadful if one draws near and contemplates them closely. The men- 
tal, like the physical, retina has its illusions. 



LEADERS OF THE BARDSTOWN BAR. 171 

It is not intended here to give a consecutive or elaborate history of 
the Bardstown bar, but only a brief notice of some of its leaders in 
Mr. Hardin's time, who were his colleagues and rivals. In select- 
ing the subjects for .these sketches it seems according the natural 
order to begin with Felix Grundy, the oldest of those to be noticed. 
Both he and John Rowan (next to be mentioned) afterward removed 
from Bardstown, but not until they had laid the lasting foundations of 
professional success and fame. William P. Duval, a man of rare gifts, 
drifted into political life, and is remembered rather as the Governor of 
Florida and for rare colloquial powers, than for professional labors and 
ability. Ben Chapeze was a strong and able man who was too much 
in the front rank to be omitted. Charles A. WicklirTe's career was 
long, active, and successful. No one ever practiced at the Bardstown 
bar for so long a period — almost three-score years. Included is a 
sketch of the erratic John Hayes, who accomplished little of what he 
might have done, but left behind a posthumous fame for eloquence 
that finds no parallel in State history or tradition, save as that of the 
short-lived and lamented Menefee may rival it. 






172 



BEN HARDIN. 



CHAPTER XVII. 

THE BARDSTOWN PLEIADES. 

GHARACTER is largely formed and molded by the books that 
are studied and the sentiments imbibed therefrom. Books 
open the door of thought, and lead the mind out by still waters, and 
cause it to lie down in green pastures. One's associates are open 1 
books, from which are gathered the best wisdom and most useful 
knowledge for all the practical affairs of life. If a just estimate can 
be formed of one's character by a glance at the books he has faith- 
fully studied, still more accurately can he be measured by an under- 
standing of those intellectual forces about him, after which his mind, 
in many respects, has been insensibly fashioned, and in contact with 
which his own powers have been developed and strengthened. 

Not only did Grundy, Rowan, Duval, Hayes, Chapeze, Wickliffe, 
and Hardin constitute an intellectual galaxy of rare splendor — for they 
were all stars — but each unconsciously shed light on the other. 
There is a pollen of genius that floats abroad and fructifies its kind. 
Like begets like. 

I. — Felix Grundy. 

In a preceding chapter, the career of Judge Grundy was briefly 
traced to the period at which Mr. Hardin entered his office as 
a student. It now remains to take it up at that point and follow it to 
its close. 

December 10, 1806, he was appointed, by Governor Greenup, 
judge of the Court of Appeals of Kentucky, and, in the spring follow- 
ing, made chief-justice of that court. His service on the bench con- 
tinued but a short period. He delivered his last opinion December 
17, 1807. 

About that period, the son of a prominent citizen and an old per- 
sonal friend was arrested, at Nashville, on a criminal charge. Judge 
Grundy was engaged to defend the youth, which he did successfully. 
His talents made a most favorable impression on the Tennesseans, 
and, in turn, he was so won by their kindness and attention, and the 






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174 BEN HARDIN. 

prospect of professional advantages, that he resigned his judgeship 
and removed to Nashville. He engaged in the practice of law, and 
immediately took the highest rank at the bar. 

He was twice elected Representative in Congress, serving from 181 1 
to 1 815. For several years he was a member of the Tennessee Legis- 
lature. In 1827 he was again a candidate for Congress, John Bell 
being his opponent. The contest created an immense excitement, 
resulting, however, in Bell's election by less than three hundred votes. 
General Jackson voted with an open ticket for Grundy. 

He was elected United States Senator in 1829, to succeed John H. 
Eaton. In 1833 ne was re-elected for a full term, and served until 
1839. I n the latter year he resigned to enter the cabinet of President 
Van Buren as attorney-general. That position he resigned in 1840, 
and was again elected United States Senator. He, however, never ! 
took his seat, dying at Nashville, December 12, 1840. 

Judge Grundy was a great and good man. He was pronounced 
intellectually to be the foremost in the country, and was at all times 
and under all circumstances an honest and fearless advocate of the 
right. In Archbishop Spaulding's " Sketches of Kentucky," the fol- 
lowing incident is related of Grundy's service in the constitutional 
convention of 1799, which is decidedly illustrative: 

" Robert Abell was the only Catholic in that body. It had been agreed 
that each member of the convention should be at liberty to present such 
clauses as he thought worthy of insertion in the organic law they had met 
to perfect, and that, after debate on the clauses proffered, those should be 
accepted which would be found carried by a vote of a majority of the dele- 
gates. Robert Abell's room-mates were Felix Grundy and a lesser legal light 
who had abandoned the Presbyterian pulpit for the forum of the courts of civil 
law. The last-named party one day called the attention of his companions 
to a provision it was his desire to have embodied in the Constitution. The 
provision ran about as follows : ' It is further provided that no Papist or 
Roman Catholic shall hold office of profit or trust in the Commonwealth.' 
Seizing his pen Felix Grundy immediately indited the following: ' It is also 
provided that no broken-down Presbyterian preacher shall be eligible to any 
office in this Commonwealth.' Having read the clause, he assured the 
quondam minister that he would lay it before the convention and advocate 
its adoption the moment the provision he had shown them should be pre- 
sented to that body."* 

It is needless to say that the matter ended at that point. 
The reader will find the decisions of Judge Grundy while on the 
Appellate bench in Kentucky published in the single volume of 

* Catholicity in Kentucky, by Hon. B. J. Webb, page 104. 



FELIX GRUNDY. 175 

Hardin's reports. His congressional speeches, so far as reported, arc- 
preserved in the "Annals of Congress" and Gales and Seaton's 
"Congressional Debates." Mr. Parton classes him among the most 
intimate friends and decided partisans of General Jackson.* 

The following is from the pen of a distinguished gentleman, who 
knew Judge Grundy personally and intimately and was his friend, one 
who yet survives to link that distant generation with the present: 

" I knew Mr. Grundy well. After the adjournment of Congress in 1840 
Ik- and I left Washington in a stage coach and passed through Abingdon, 
Va. We had a list of appointments to make Democratic speeches from the 
first county in east Tennessee down to Nashville. He called me his exhorter. 
I greatly loved him. He was one of the most eloquent speakers I ever 
heard. If I were called upon to specify the two most eloquent speeches I 
have heard in my day, I should say one was made by Felix Grundy in the 
Democratic Baltimore convention in 1840, and the other made by Henry 
Clay in the Senate of the United States, the same year, on President Tyler's 
veto of the bill to establish a United States bank."f 

Prentice, in his life of Clay, speaks of Grundy as an influential 
politician as early as 1803. In describing a debate between Grundy 
and Clay, occurring in 1804, on the question of repealing the "Lex- 
ington Insurance Office," Prentice thus writes: 

"The only heroes in opposition were Clay and Grundy, both good 
speakers and youthful politicians ; and the display of talent was so brilliant 
during the two days of the discussion that the hall was thronged with spec- 
tators, many of whom could obtain no seats, and the members of the Senate 
were in almost constant attendance at the House. It was the one great 
debate of the session. All acknowledged that Grundy had talents, and that 
he managed the debate with extreme adroitness ; but no one pretended that 
he was equal to his opponent either in elocution, political information, logical 
skill, or extent of mental resources. After finding himself compelled to 
desist from offensive warfare, he tried every expedient to secure a safe escape ; 
but his eagle foe pursued him closely in all his movements — his sweeps 
toward earth and his flights toward Heaven — and at last grappled with him 
and held him fast." % 

Notwithstanding his discomfiture (and the account of the partial 
Prentice must be taken cum grano salts), Judge Grundy had the solac- 
ing triumph of carrying his measure through the House. 

His removal to another State lessened, but did not obliterate, 
the rivalry between these gifted sons of Kentucky. They were 

*Life of Jackson, by James Parton, Vol. III., page *^^. 

■fHon. Harvey M. Watterson. 

X Life of Clay, by George D. Prentice, page 27. 



I76 BEN HARDIN. 






politically in harmony during the Madison administration, which they 
both supported. Federal writers of that period assumed that a very 
powerful triumvirate had large influence on the policy and destinies 
of the country, "James Madison, Felix Grundy, and the devil."* 

But when the irreconcilable issues sprang up that divided Clay 
and Jackson, Grundy adhered to the latter. In 1830, alluding to the 
subserviency of the Senate to Jackson's will, Clay evinced his feeling 
against Grundy in a letter to J. S. Johnston : " Does it (the Senate) 
imagine that the miserable sophistry of that pliant tool, Felix 
Grundy, will justify it?" Clay was then still smarting under the 
charge of "bargain and intrigue,'" for which he held the friends of 
Jackson responsible. 

In 1840, Mr. Clay was in better humor. It was the period of the 
Harrison campaign, when he visited Nashville in the interest of the 
Whig cause, and with the view of arraigning the Democracy for the 
mal-administration of Jackson and Van Buren. Notwithstanding 
Grundy had been, and still was, identified with the opposing party, 
Clay was desirous of meeting him, and eagerly inquired for him on 
reaching Nashville. Being told that he was absent attending a Dem- 
ocratic meeting, "Oh," said Mr. Clay, "I am not at all surprised to 
hear that mine ancient friend is still engaged in his accustomed occu- 
pation of defending criminals." 

The late Senator Foote, in "Bench and Bar of the South-west," 
thus estimates Mr. Grundy: "As a jurist, he has not been regarded 
as having been very deeply and extensively informed, nor did he ever 
manifest an ambition for the highest celebrity in this respect. In 
scholastic attainments no one has thought of claiming for him a very 
high rank. His general reading was very extensive, and his knowl- 
edge of the affairs of the world and of the human heart was such as 
has seldom been surpassed. His person was impressive and com- 
manding, his face radiant with mingled beams of genius and benevo- 
lence, his voice was naturally of great strength and sweetness, and it 
had been so modulated by judicious discipline as to adapt its tones 
most happily to the expression of all the emotions of which the 
human soul is susceptible. His gesticulation was never profuse, but 
always apposite and graceful. When addressing either court or jury 
his manner was composed and full of dignity, unmixed with either 
arrogance or affectation. His countenance was habitually serene and 
benignant. "f He spoke apparently without preparation, yet Foote 
intimates that this was more apparent than real, and that he was 

* Olive Branch, by Cary. t Bench and Bar, page 156. 



JOHN ROWAN. 



1/7 



simply adept in the ars celare artem. He admits that Judge Grundy 
couid be humorous when he chose, and sometimes indulged an 
inoffensive mimicry. 

His relations with Mr. Hardin were always kind. "I remem- 
ber," said Mrs. Governor Helm, "seeing Felix Grundy when I was 
a school girl. It was at Dr. Burr Harrison's residence, in Bardstown. 
When I first saw him I took him for a red-faced Irishman. He was 
a man of medium size, is my recollection. When he saw me, and 
was told I was Ben Hardin's daughter, he ran and caught and kissed 



me. 



II. — John Rowan. 



In a previous chapter, some of the incidents in the life of Judge 
Rowan, occurring prior to the year 1824, have been mentioned. 
Others are to be referred to now. 




Federal Hill, the Home of Judge Rowan, at Bardstown. 

When a young man, he had taught school — or, as he sonorously 
expressed it, on one occasion, "engaged in the humble employment 
of a pedagogue. " In his early career at the bar he made his mark as 
a criminal lawyer. In the early years of his practice he received the 
appointment of prosecuting attorney. After convicting a young man 
of felony, Rowan experienced such compunctions that he resigned 
his office, resolving never more to prosecute. Thereafter he only 
appeared for the defense. His defense of one Skaggs, tried for murder 

12 



I78 BEN HARDIN. 






at Bardstown in 1798, was pronounced masterly, and " obtained for 
him a reputation which followed him through life as one of the 
ablest lawyers at the bar of Kentucky, especially in criminal cases."* 

In 1803, he became involved in a personal difficulty, over a game 
of cards, with Dr. Chambers, of Bardstown. In the course of the 
play a dispute arose between them. Dr. Chambers was exceedingly 
overbearing and offensive. The following account of the duel that 
followed is from an interesting sketch of "Jo Daviess, of Ken- 
tucky:"t I 

"A dispute had arisen between the parties. Rowan, unaccustomed to 
endure such treatment, answered hotly, at which the doctor sprang up from 
the table with an oath, exclaiming that ' it was not for him to remain in such 
company, to be contradicted by the son of an obscure plebeian.' Stung by 
such insolence, Rowan replied that ' it was better to be the son of an obscure 
plebeian than the husband of a woman who had ', alluding to some whis- 
pers then current in relation to the conduct of Mrs. Chambers. Such an 
expression of course admitted of but one reply, and a challenge was given 
on the spot. But the young man, ashamed of having in his anger reflected 
so coarsely on a woman, refused to accept it, making at the same time the 
most ample apologies. The doctor, however, would take no explanation, and 
insisted on a meeting; and as Rowan's reluctance to fight in such a quarrel 
became more manifest, his opponent's insults grew more outrageous, until 
the high-spirited youth could submit to them no longer. He accepted the 
challenge, remarking as he did so, ' Since Dr. Chambers compels me to fight 
after making every apology, I shall be sure to kill him,' adding, 'and I will 
hit him in the button nearest his heart.' The parties accordingly met, Jo 
Daviess and Colonel Allen (who was killed afterward at the battle of the 
Raisin) being Rowan's seconds. At the first fire Dr. Chambers fell, the bul- 
let entering his body within an inch of the button which his antagonist had 
previously designated as his mark. The wound was at once known to be 
mortal, and all engaged in the affair felt that they must fly immediately, for 
they well knew the family of the unfortunate man would urge the prosecu- 
tion against them with a rigor seldom shown at that time, when dueling, 
though forbidden by the law, was by public opinion scarcely regarded as crim- 
inal. Daviess made his way on foot to my father's house, thirty or forty miles 
distant, and remained for several days in a sort of semi-concealment." 

The event produced a profound sensation — feeling being strongly 
aeainst Rowan. An excited mob visited his house with the purpose 
of vengeance. Discovering its approach, he dressed one of his 
negroes in his hat and cloak, and started him on his riding horse 
across the fields, while he hid himself in some cliffs. This he easily 

* Allen's History of Kentucky— sketch of John Rowan. 
t Harper's Magazine, Vol. XXI., page 349. 






JOHX ROWAN. 179 

did, as the mob, misled, pursued the negro, who escaped. In a few 
days Rowan was arrested. Felix Grundy was at the time Common- 
wealth's attorney, but resigned to avoid prosecuting. The prosecu- 
tion, by some means, failed — the usual result in that day of dueling 
homicides — Allen and Daviess acting as his counsel. * 

In the full tide of his popularity as the leader of the Relief party, 
Judge Rowan was elected as successor of Isham Talbott, United 
States Senator. On passing from the turmoil of a " Relief" Legisla- 
ture to the dignified quiet of the National Senate, he relinquished 
none of his ultra views in favor of popular rights. He had argued as 
a lawyer and held as a judge — as observed in a previous page — the 
constitutionality of the occupying claimant law. The contrary decis- 
ion of the Supreme Court in no wise shook his convictions. When 
it was proposed in the Senate to reorganize the judges of that court, 
he offered an amendment that a concurrence of seven of the ten 
judges should be necessary to declare any legislative act unconstitu- 
tional. He advocated in a powerful speech the abolition of imprison- 
ment for debt under process from the courts of the United States, 
and in 1828 such a law was enacted, partly the result of his strenuous 
efforts. 

Judge Rowan was the colleague of Colonel Richard M. Johnson, 
and neither of these gentlemen was in favor with Mr. Clay, at that 
time secretary of State under President Adams. "I am sorry," 
wrote Clay to Crittenden, in March, 1826, "to tell you that our sen- 
ator (Mr. Rowan) is among the bitterest opponents of the adminis- 
tration. He appears as if he had been gathering a head of malignity 
for some years back, which he is now letting off on poor Mr. Adams 
and his administration. He is, however, almost impotent." Judge 
Rowan was in sympathy with the movement then already begun in 
the interest of General Jackson's candidacy for the presidency. It 
was not part of the policy of that movement to contribute anything 
to the success or serenity of the Adams administration. Two months 
later, Clay again wrote Crittenden : " Our Senator, Mr. Rowan, made 
a violent opposition to Trimble's nomination (as justice of the 
Supreme Court), and prevailed upon four other senators to record 
their negatives with him. He is perfectly impotent in the Senate, 
and has fallen even below the standard of his talents, of which he has 
some for mischief, if not for good." 

"The firearms used by Judge Rowan in this encounter were thus disposed of in his will : " My 
dueling pistols I bequeath to my son John during his life, and at his death to his eldest son. They 
are never to be used by either but when their honor imperatively demands it, and in that case I know 
they will be held steadily." 



l8o BEN HARDIN. 

Perhaps the relation between these two great men was such that 
neither did nor could do justice to the character of the other. Judge 
Rowan's opinion of Mr. Clay was hardly more flattering. Rowan 
was of the JefTersonian school of democracy. " That he should have j 
been strongly inimical to the Whig policy, of which Mr. Clay was the 
chief exponent and champion in Kentucky," says Mr. Webb, *'was 
but natural." But he gave Mr. Clay little credit for exalted mental gifts, 
still less for statesmanship. He was often heard to express the opin- 
ion that Daniel Webster was much the superior man. He could not 
understand why it was that the Massachusetts statesman was so much 
in the habit, as he expressed it, of "playing second fiddle" to one so 
greatly his inferior. Speaking on a certain occasion of the distin- 
guishing characteristics of these eminent men, he illustrated his idea 
by the following supposed case: " If the two should go duck shoot- 
ing together, Mr. Clay would expect Mr. Webster to assume the office 
of spaniel, to bring out the birds, and the latter would not perceive 
that there was an} 7 degradation in his assumption of such an office."* 

The last public service performed by Judge Rowan was in the 
capacity of commissioner to adjust claims of citizens of the United 
States against Mexico, under the convention of Washington, of the 
nth of April, 1839. ^ n tms office he labored with great assiduity. 
On the temporary adjournment of the commission, he visited his 
family in Kentucky, but, being prevented by indisposition from 
returning to Washington on its reassembling, he resigned his post. 
On the organization of the Kentucky Historical Society, in 1838, he 
was elected its president, and held the position until his death He 
died, after a short illness, at his residence in Louisville, the 13th of 
July, 1843, m the seventieth year of his age. 

In person, Judge Rowan was a large, broad shouldered man, six 
feet one and a half inches in height, erect, tending to obesity in later 
life, but, younger, was of great physical strength and endurance, 
which, however, was impaired by lameness resulting from a stage- 
coach accident. Over his intelligent gray eyes jutted a massive fore- 
head, crowned with thick hair, and terminating at the base in shaggy 
brows. His strongly-marked face betokened the character of the 
man and plainly hinted at his Scottish origin. His presence was 
extremely stately and imposing. He has been described, when in 
the excitement of debate, as leonine in appearance. 

He was a man of rare scholarship, who delighted in the classics. 
He read the Latin with the same facility as English. He prepared a 

* Life of Lazarus W. Powell, by B. J. Webb. 



JOHN ROWAN. I 8 I 

manuscript Latin grammar for his own diversion. His stores of 
knowledge seemed boundless. He was an attractive conversation- 
alist, and delighted to gather about him a company of young mm 
and entertain them on any subject that presented. All were silent 
when he spoke. He was exceedingly chaste in language and senti- 
ment, and eloquent in expression, never, however, indulging an 
approach to wit or humor. 

Said one, who knew him personally: " None who ever heard him 
in conversation could forget the purity of his style, the bland elegance 
of his manner, the terse chasteness of his figures, and the majestic 
affability of his demeanor to those around him. He was a combina- 
tion, in this particular, of the strength and depth of Mcintosh with 
the graceful and diffusive richness of Goldsmith. "* His standard of 
lawyership was exalted. *' No man can become a good lawyer," said 
he, "who is not a good scholar. Professional excellence can not be 
attained by one not versed in general literature and the sciences." 

The surviving products of this accomplished man are chiefly to be 
found in reports of congressional debates during his service in the 
House and Senate. His last forensic speech was for the defense, in 
the celebrated Wilkinson trial. On that occasion he exhausted the 
reasoning against the acceptance by lawyers of retainers for the 
prosecution of capital cases. This was done for the especial reproof 
of Mr. Hardin, employed by the prosecution. The curious reader 
will find the speech in a recent publication — " Carlton on Homicide " — 
a speech teeming with sophistries that have produced conscientious 
compunctions on the subject in many confiding and uncritical law- 
yers. A still more remarkable example of his logical power is to 
be found in the preamble to a legislative resolution, in 1825, con- 
demning the Court of Appeals on account of its decision in Lapsley 
vs. Brashear.f In an entirely different vein is the following extract 
from a speech in the Legislature, in 1824, in the tumultuous debate on 
the relief question, in which he was a leader. Referring to Mr. Har- 
din, he is reported to have said : "The gentleman has seen fit to cast 
reflections upon me in his speech. My domestic afflictions, and many 
other causes, have to some extent tempered the chivalry of my 
nature, but I have seen the day when one glance of my eye would 
have pulverized him to dust. I have 

" ' Tray, Blanche, and Sweetheart, 

And the whole pack, at my heels' — 



'• A definition of drunkenness, once given by him, might well have emanated from Dr. Johnson: 
"An ebullitionary effusion of inebriety." fThis preamble will be found in Appendix, note B. 



l82 BEN HARDIN. 

But I care not for their aspersions. I cast them off as the lion shakes 
the dew-drops of the morning from his mane." 

Mr. Hardin knew him as only so profound a judge of human 
nature could know another. Much may be inferred as to the nature 
of his opinion of Rowan when he called him the "Old Monarch." 
He said, however, that he had no intellectual growth after passing 
into the forties. If correct in this opinion, does it detract from 
Rowan's fame? Dr. Johnson thought the mind obtained a stationary 
point from whence it can never advance, occurring before the middle 
of life. " When the powers of nature have obtained their intended 
energy, they can be no more advanced. The shrub can never become 
a tree. Nothing then remains but practice and experience." 

He was an inveterate gamester, and once confessed that in the 
excitement of that pursuit he found relief from painful reminiscences. 
He was by nature an aristocrat, courteous and genial to his equals, 
but forbidding in manner to social inferiors. Naturally enough, he 
was unpopular with the masses, who harshly criticised him. Beneath 
an exterior cold and dignified almost to repulsion, his heart beat 
warmly and faithfully for his friends, and to his family his devotion 
was unmeasured. No higher testimony to his filial affection could be 
furnished than the provision of his will forbidding a monument to 
himself because his father's grave was unmarked. 

He long resided at his country seat, " Federal Hill," near Bards- 
town, where he dispensed a liberal hospitality. About 1823, he 
removed to Louisville, which continued his residence until the close 
of life. 

III. — Governor William P. Duval. 

In "The Early Experiences of Ralph Ringvvood," in "The 
Crayon Papers," by Washington Irving, is to be found a sketch of the 
early life of Governor Duval. 

While "The Crayon Papers" are to be found in any well-selected 
library, yet to many readers they may not be readily accessible, an-d 
so extracts from them are here given. Mr. Irving appends an intro- 
ductory note as follows: "Ralph Ringwood, though a fictitious 
name, is a real personage ; the worthy original is now living and 
flourishing in honorable station. I have given some anecdotes of his 
early and eccentric career in, as nearly as I can recollect, the very 
words in which he related them. They certainly afforded strong 
temptations to the embellishments of fiction ; but I thought them so 






GOVERNOR WILLIAM I'. DUVAL. 1S3 

strikingly characteristic of the individual, and of the scenes and 
society into which his peculiar humors carried him, that I preferred 
giving them in their original simplicity." 

The statements in this note are not the pretenses of an anonymous 
writer ( for Irving at that time wrote under a nom de plume ) as may 
be inferred from a statement by a writer some years ago in the 
Atlantic Monthly. In " Notes of New England, by a Virginian," the 
writer mentions seeing at a hotel in New York, on one occasion, 
Governor Duval and Mr. Irving in close and protracted conference. 
That the notes for Ralph Ringwood were then procured is a reasona- 
ble inference, and if truth has been adorned, the responsibility rests 
with u Ralph " rather than his biographer. 

" I am a Kentuckian by residence and by choice, but a Virginian by 
birth," begins Ralph; "the cause of my leaving the 'Ancient Dominion' 
and emigrating to Kentucky was a jackass ! You stare, but have a little 
patience, and I'll show you how it came to pass."* 

Ralph's father was a widower, and a certain shrewish Barbara, his 
housekeeper. In order to a Sunday ride, the young man had secured 
a jack, accustomed to run oh the commons, and had ensconsed him in a 
smoke-house on the Saturday night. Barbara, finding the animal there 
and mistaking it for the devil himself, fell into fits, which resulted in 
a flogging to Ralph at the hands of an uncle. The sequel of all was 
"a certain wild roving spirit of freedom," said Ralph, "which, I 
believe, is as inherent in me as it is in the partridge, was brought into 
sudden activity by the checks and restraints I suffered." 

" ' I'll go from home,' thought I, ' and shift for myself.' Perhaps this 
notion was quickened by the rage for emigrating to Kentucky, which was at 
that time prevalent in Virginia. I had heard such stories of the romantic 
beauties of the country; of the abundance of game of all kinds, and of the 
glorious and independent life of the hunters who ranged its noble forests 
and lived by the rifle, that I was as much agog to get there as boys who live 
in seaports are to launch themselves among the wonders and adventures of 
the ocean." 

Barbara at length relented, and his father expostulated, but all in 
vain. To Kentucky he would go ; as for occupation he would ' ' hunt ! " 

"Accordingly, as soon as spring had fairly opened," proceeds the narra- 
tive, "I sought my father one day in his study, and informed him I was 
about to set out for Kentucky, and had come to take my leave. He made 
no objection, for he had exhausted persuasion and remonstrance, and, 
doubtless, thought it best to give way to my humor, trusting that a little 

: ' Crayon Paper., by W. Irving, page 116. 



184 BEN HARDIN. 

rough experience would soon bring me home again. I asked for money for 
my journey. He went to a chest, took out a long green silk purse, well 
filled, and laid it on the table. I now asked for a horse and servant. 

" ' A horse ! ' said my father, sneeringly, ' why you would not go a mile 
without racing him and breaking your neck ; and as to a servant, you can 
not take care of yourself, much less of him.' 

" ' How am 1 to travel, then?' 

" ' Why, I suppose you are man enough to travel on foot.' 

"He spoke jestingly, little thinking I would take him at his word; but 
I was thoroughly peaked in respect to my enterprise ; so I pocketed the 
purse, went to my room, tied up three or four shirts in a pocket-handker- 
chief, put a dirk in my bosom, girt a couple of pistols around my waist, 
and felt like a knight-errant, armed cap-a-pie and ready to rove the world 
in quest of adventures. 

"My sister (I had but one) hung around me and wept, and entreated 
me to stay. 1 felt my heart swell in my throat, but I gulped it back to its 
place and straightened myself up. I would not suffer myself to cry. I 
at length disengaged myself from her, and got to the door. 

" ' When will you come back ?' cried she. 

" 'Never, by heavens!' cried I, 'until I come back a member of Con- 
gress from Kentucky. I am determined to show that I am not the tail end 
of the family.' Such was my outset from home. You may suppose what a 
greenhorn I was, and how little I knew of the world I was launching into. 

" I do not recollect any incident of importance until I reached the bor- 
ders of Pennsylvania. I had stopped at an inn to get some refreshment, and, 
as I was eating in the back room, I overheard two men in the bar room con- 
jecture who and what I could be. One determined at length that I was a 
runaway apprentice, and ought to be stopped, to which the other assented. 
When I had finished my meal and paid for it, I went out at the back door, 
lest I should be stopped by my supervisors. Scorning, however, to steal 
off like a culprit, I walked around to the front of the house. One of the 
men advanced to the front door. He wore his hat on one side, and had a 
consequential air that nettled me 

" ' Where are you going, youngster? ' demanded he. 

" 'That's none of your business! ' replied I, rather pertly. 

" ' Yes, but it is, though ! You have run away from home, and must give 
an account of yourself.' 

" He advanced to seize me, when I drew forth a pistol : ' If you advance 
another step I'll shoot you ! ' 

" He sprang back as if he had trodden on a rattlesnake, and his hat fell 
off in the movement. 

"'Let him alone!' cried his companion, he's a foolish, mad-headed 
boy and don't know what he's about. He'll shoot you, you may rely on it.' 



GOVERNOR WILLIAM P. DUVAL. 1 85 

" He did not need any caution in the matter; lie was afraid even to pick 
up his hat ; so I pushed forward on my way without molestation. This inci- 
dent, however, had its effect upon me. I became fearful of sleeping in any 
house at night, lest I should be stopped. I took my meals in the houses, in 
the course of the day, but would turn aside at night into some wood or 
ravine, make a fire, and sleep before it. This I considered was true hunter's 
style, and wished to inure myself to it. 

"At length I arrived at Brownsville, leg-weary and way-worn, and in a 
shabby plight, as you may suppose, having been ' camping out ' for some 
nights past. I applied at some of the inferior inns, but could gain no admis- 
sion. I was regarded for a moment with a dubious eye, and then informed 
that they did not receive foot-passengers. At last I went boldly to the prin- 
cipal inn. The landlord appeared as unwilling as the rest to receive a 
vagrant boy beneath his roof; but his wife interfered in the midst of his 
excuses, and half elbowing him aside: 'Where are you going, my lad?' 

" 'To Kentucky.' 

" ' What are you going there for ? ' 

" 'To hunt.' 

" She looked earnestly at me for a moment or two. 

" ' Have you a mother living?' said she, at length. 

" ' No, madam; she has been dead for some time.' 

" ' I thought so,' cried she, warmly. ' I knew if you had a mother living 
you would not be here.' 

"From that moment the good woman treated me with a mother's kind- 
ness. I remained several days beneath her roof, recovering from the fatigue 
of my journey. While here I purchased a rifle and practiced daily at a mark 
to prepare myself for a hunter's life. When sufficiently recruited in strength 
I took leave of my kind host and hostess and resumed my journey. 

"At Wheeling I embarked in a flat-bottomed family boat, technically 
called a broad-horn, a prime river conveyance in those days. In this ark for 
two weeks I floated down the Ohio. The river was as yet in all its wild 
beauty. Its loftiest trees had not been thinned out. The forest overhung 
the water's edge, and was occasionally skirted by immense canebrakes. Wild 
animals of all kinds abounded. We heard them rushing through the thick- 
ets and splashing in the water. Deer and bears would frequently swim across 
the river. Others would come down to the bank and gaze at the boat as it 
passed. I was incessantly on the alert with my rifle, but somehow or other 
the game was never within shot. Sometimes I got a chance to land and try 
my skill on shore. I shot squirrels and small birds, and even wild turkeys; 
but though I caught glimpses of deer bounding away through the woods, I 
never could get a fair shot at them. 

"In this way we glided in our broad-horn past Cincinnati, the 'Queen 
of the West,' as she is now called, then a mere group of log cabins, and the 



1 86 BEN HARDIN. 

1 

site of the bustling city of Louisville, then designated by a solitary house. 
As I said before, the Ohio was as yet a wild river. All was forest, forest, 
forest. Near the confluence of the Green river with the Ohio 1 landed, bade i 
adieu to the broad-horn, and struck for the interior of Kentucky. I had no j 
precise plan. .My only idea was to make for one of the wildest parts of the i 
country. 1 had relatives in Lexington and other settled places, to whom I 
thought it probable my father would write concerning me ; so, as I was full 
of manhood and independence, and resolutely bent on making my way in 
the world without assistance or control, I resolved to keep clear of them all." 

In the course of his first day, he killed a turkey, but the deer ran 
so he was unable to get a shot. Coming across a gang of wolves feast- 
ing on the carcass of a deer, he dispatched the leader and dispersed 
the rest. His first night was enlivened by a serenade, the product of 
home talent (the wolves), attracted by the savory turkey which he 
had served for supper. The depressing effect of darkness passed only i 
with the coming of the morning sun. 

" Having breakfasted on the remainder of my turkey," said the youthful i 
hunter, " and slaked my thirst at the bubbling stream, without further dread 
of panthers, I resumed my wayfaring with buoyant feelings. I again saw 
deer, but, as usual, running, running ! I tried in vain to get a shot at them, 
and began to fear I never should. I was gazing, in vexation, after a herd 
in full scamper, when I was startled by a human voice. Turning around, 
I saw a man, at a short distance from me, in a hunting dress. 

" ' What are you after, my lad?' cried he. 

" 'Those deer,' replied I, pettishly, ' but it seems as if they never stand 
still.' 

" Upon that, he burst out laughing. ' Where are you from?' said he. 

" 'From Richmond.' 

" 'What! In old Virginny ? ' 

" ' The same.' 

" ' And how on earth did you get here?' 

" ' I landed at Green River from a broad-horn.' 

" ' And where are your companions?' 

" ' I have none.' 

'"What! All alone?' 

" 'Yes.' 

" ' Where are you going ? ' 

" ' Anywhere.' 

" ' And what have you come here for?' 

'"To hunt.' 

" ' Well,' said he, laughingly, ' you'll make a real hunter; there's no mis- 
taking that! Have you killed anything?' 



GOVERNOR WILLIAM P. DUVAL. 1 87 

" ' Nothing but a turkey. I can't get within shot of a deer. They are 
always running.' 

" ' O, I'll tell you the secret of that. You're always pushing forward, 
and startling the deer at a distance, and gazing at those that are scampering, 
but you must step as slow, and silent, and cautious as a cat, and keep your 
eyes close around you, and lurk from tree to tree, if you wish to get a chance 
at deer. But, come, go home with me. My name is Bill Smithers. I live 
not far off; stay with me a little while, and I'll teach you how to hunt.'* 

"I gladly accepted the invitation of honest Bill Smithers. We soon 
reached his habitation ; a mere log hut, with a square hole for a window, and 
a chimney made of sticks and clay. Here he lived, with his wife and child. 
He had 'girdled' the trees for an acre or two around, preparatory to clear- 
ing a space for corn and potatoes. In the meantime, he maintained his fam- 
ily entirely by his rifle, and I soon found him to be a first-rate huntsman. 
Under his tutelage I received my first effective lessons in ' woodcraft.' 

" The more I knew of a hunter's life, the more I relished it. The coun- 
try, too, which had been the promised land of my boyhood, did not, like 
most promised lands, disappoint me. No wilderness could be more beauti- 
ful than this part of Kentucky, in those times. The forests were open and 
spacious, with noble trees, some of which looked as if they had stood for 
centuries. There were beautiful prairies, too, diversified with groves and 
clumps of trees, which looked like vast parks, and in which you could see 
the deer running, at a great distance. In the proper season, these prairies 
would be covered in many places with wild strawberries, where your horse's 
hoofs would be dyed to the fetlock. I thought there could not be another 
place in the world equal to Kentucky — and I think so still. 

" After I had passed ten or twelve days with Bill Smithers, I thought it 
time to shift my quarters, for his house was scarce large enough for his own 
family, and I had no idea of being an incumbrance to any one. I accord- 
ingly made up my bundle, shouldered my rifle, took a friendly leave of 
Smithers and his wife, and set out in quest of a Nimrod of the wilderness, 
one John Miller, who had lived alone, nearly forty miles off, and whom I 
hoped would be well pleased to have a hunting companion." 

After experiencing a storm in the woods, from which he escaped 
without serious injury, he arrived at Miller's the following day. His 
host was called " Blue-Bead Miller," from a blue wart over one eye. 
He was an old man and a veteran in frontier life. Duval soon became 
proficient in hunting, as killing a bear attested. He described his 
associates, his hunting exploits, the social modes of the period and 
locality, and his participation therein, and altogether life went swim- 

* Twenty years ago ex-Senator Thomas C. McCreery. of Owensboro. wrote and published in the 
Monitor newspaper a sketch of Bill Smithers. alias Bill Smothers, which was characterized by the 
graphic description, the tender sentiment, the humorous vein, and the graceful diction that marked 
the speeches and other productions of that distinguished gentleman. 



I 88 BEN HARDIN. 

mingly on. Finally the spirit of discontent seized upon him. He 
asked himself: 

"Have not I something more in me than to be carrying a rifle on my 
shoulder, day after day, and dodging around after bears, and deer, and 
other brute beasts? My vanity told me I had; and I called to mind my 
boyish boast to my sister, that I would never return home until I returned a 
member of Congress from Kentucky; but was this the way to fit myself for 
such a station ? 

"Various plans passed through my mind, but they were abandoned 
almost as soon as formed. At length I determined upon becoming a lawyer. 
True it is, I knew almost nothing. I had left school before I had learned 
beyond the 'rule of three.' ' Never mind,' said I to myself, resolutely, ' I 
am a terrible fellow for hanging on to anything when I've once made up my 
mind ; and if a man has but ordinary capacity, and will set to work with 
heart and soul, and stick to it, he can do almost anything.' With this maxim, 
which has been pretty much my mainstay through life, I fortified myself in 
my determination to attempt the law. But how was I to set about it ? I 
must quit this forest life, and go to one or other of the towns, where I might 
be able to study and attend the courts. This, too, required funds. I exam- 
ined into the state of my finances. The purse given me by my father had 
remained untouched, in the bottom of an old chest up in the loft, for money 
was scarcely needed in these parts. I had bargained the skins acquired in 
hunting, for a horse and various other matters, on which, in case of need, 
I could raise funds. I, therefore, thought I could make shift to maintain 
myself until I was fitted for the bar. 

" I informed my worthy host and patron, old Miller, of my plan. He 
shook his head at my turning my back upon the woods, when I was in a fair 
way of making a first-rate hunter ; but he made no effort to dissuade me. I 
accordingly set off in September, on horseback, intending to visit Lexing- 
ton, Frankfort, and other of the principal towns, in search of a favorable 
place to prosecute my studies. My choice was made sooner than I expected. 
I had put up one night at Bardstown, and found, on inquiry, that I could 
get comfortable board and accommodation in a private family for a dollar 
and a half a week. I liked the place, and resolved to look no farther. So 
the next morning I prepared to turn my face homeward, and take my final 
leave of forest life. ' 

"I had taken my breakfast, and was waiting for my horse, when, in 
pacing up and down the piazza, I saw a young girl seated near a window, 
evidently a visitor. She was very pretty ; with auburn hair and blue eyes, 
and was dressed in white. I had seen nothing of the kind since I had left 
Richmond ; and at that time I was too much of a boy to be much struck by 
female charms. She was so delicate and daintydooking, so different from 
the hale, buxom, brown girls of the woods; and then her white dress! — it 



GOVERNOR WILLIAM P. DUVAL. 1 89 

was perfectly dazzling! Never was poor youth more taken by surprise and 
suddenly bewitched. My heart yearned to know her; but how was I to 
accost her? I had grown wild in the woods, and had none of the habitudes 
of polite life. Had she been like Peggy Pugh or Sally Pigman, or any other 
of my leathern-dressed belles of the Pigeon Roost, 1 should have approached 
her without any dread ; nay, had she been as fair as Schultz's daughters, with 
their looking-glass lockets, I should not have hesitated; but that white dress, 
and those auburn ringlets, and blue eyes, and delicate looks, quite daunted, 
while they fascinated, me. I don't know what put it into my head, but I 
thought, all at once, that I would kiss her! It would take a long acquaint- 
ance to arrive at such a boon, but I might seize upon it by sheer robbery. 
NoboJy knew me here. I would just step in, snatch a kiss, mount my 
horse, and ride off. She would not be the worse for it ; and that kiss — oh ! 
I should die if I did not get it ! 

" I gave no time for the thought to cool, but entered the house and stepped 
lightly into the room. She was seated with her back to the door, looking 
out at the window, and did not hear my approach. I tapped her chair, and 
as she turned and looked up I snatched as sweet a kiss as ever was stolen, 
and vanished in a twinkling. The next moment I was on horseback, gallop- 
ing homeward, my very ears tingling at what I had done." 

The young lady thus assailed was Nancy Hynes, who resided with 
her widowed mother at Bardstown. Returning home, he sold his 
horse and converted all he had into cash, thus amassing nearly four 
hundred dollars. The parting with "Blue Bead" Miller was a sad 
one, and relinquishing the life of a hunter, not without regret; but 
both were accomplished. He footed it back to Bardstown and began 
the study of the law — a difficult undertaking, as his education was oth- 
erwise deficient. 

After the lapse of a year, an old lawyer — a friend of his father — 
called on him to proffer assistance in his studies. At first he was dis- 
posed to reject all aid, but thought better of it and accepted. He 
found profit from a debating society, in which he was able to ' ' hold 
his own." During the first year of his stay at Bardstown he had led 
pretty much the life of a recluse. Some married ladies, however, 
heard him speak at the debating society, and, suspecting him of 
genius, determined to bring him out. So it happened that one even- 
ing at tea, whither he had been invited, he encountered the fair 
Nancy, whom, indeed, he had once before casually met on the street. 
The meeting was embarrassing and agitating at first, but this over- 
come, all things went well. At nineteen he was engaged to be mar- 
ried. After some objection on the part of Nancy's mother, it was 



I9O BEN HARDIN. 

arranged that as soon as he obtained license and was fairly started in 
business the marriage should occur. At this period his father, who 
had heard of his whereabouts and plans, wrote advising a collegiate 
course and offering to defray expenses. He properly consulted his 
intended bride on the subject. ''She sided in opinion with my fath- 
er," said Duvall, "and talked so disinterested and tenderly that, if 
possible, I loved her more than ever." 

Two years at college was determined on, but at that juncture 
Nancy's mother died. Thereupon came the question of separating 
from the doubly-orphaned girl that he loved. This question he easily 
answered in the negative. He would obtain license as soon as possi- 
ble, and become her protector. What follows would suffer from the 
slightest abridgment: 

"That very autumn I was admitted to the bar, and within a month after- 
ward was married. We were a young couple, she not much above sixteen, 
I not quite twenty, and both almost without a dollar in the world. The 
establishment which we set up was suited to our circumstances — a log house 
with two small rooms, a bed, a table, a half-dozen chairs, a half-dozen 
knives and forks, a half-dozen spoons, and everything by half-dozens; a little 
delft ware ; everything in a small way; we were so poor, but then so happy. 

"We had not been married many days, when court was held at a county 
town, about twenty-five miles distant. It was necessary for me to go there, 
and put myself in the way of business ; but how was I to go ? I had 
expended all my means on our establishment, and then it was hard parting 
with my wife so soon after marriage. However, go I must. Money must 
be made, or we should soon have the wolf at our door. I accordingly bor- 
rowed a horse, and borrowed a little cash, and rode off from the door, leav- 
ing my wife standing at it, and waving her hand after me. Her last look, so 
sweet and beaming, went to my heart. I felt as if I could go through fire 
and water for her. 

"I arrived at the county town on a cool October evening. The inn was 
crowded, for the court was to commence on the following day. I knew no 
one, and wondered how I, a stranger and a mere youngster, was to make 
my way in such a crowd, and to get business. The public room was 
thronged with the idlers of the country, who gather together on such occa- 
sions. There was some drinking going forward, with much noise, and a 
little altercation. Just as I entered the room I saw a rough bully of a fel- 
low, who was partly intoxicated, strike an old man. He came swaggering 
by me, and elbowed me as he passed. I immediately knocked him down 
and kicked him into the street. I needed no better introduction. In a 
moment I had a dozen rough shakes of the hand, and invitations to drink, 
and found myself quite a personage in this rough assembly. 



GOVERNOR WILLIAM P. DUVAL. I9I 

"The next morning court opened. I took my seat among the lawyers, 
but felt as a mere spectator, not having a suit in progress or prospect, nor 
having any idea where business was to come from. In the course of the 
morning a man was put at the bar, charged with passing counterfeit mom 
and was asked if he was ready for trial. He answered in the negative. He 
had been confined in a place where there were no lawyers, and had not had 
an opportunity of consulting any. He was told to choose counsel from the 
Lawyers present, and to be ready for trial on the following day. He looked 
around the court and selected me. I was thunder struck. I could not tell 
why he should make such a choice. I, a beardless youngster; unpracticed 
at the bar; perfectly unknown. I felt diffident yet delighted, and could have 
hugged the rascal. 

"Before leaving the court he gave me one hundred dollars in a bag as a 
retaining fee. I could scarcely believe my senses; it seemed like a dream. 
The heaviness of the fee spoke but lightly in favor oi his innocence, but 
that was no affair of mine. I was to be advocate, not judge nor jury. I 
followed him to the jail, and learned from him all the particulars of his case ; 
from thence I went to the clerk's office and took minutes of the indictment. 
I then examined the law on the subject, and prepared my brief in my room. 
All this occupied me until midnight, when I went to bed and tried to sleep. 
It was all in vain. Never in my life was I more wide-awake. A host of 
thoughts and fancies kept rushing through my mind ; the shower of gold that 
had so unexpectedly fallen into my lap ; the idea of my poor little wife at 
home, that I was to astonish with my good fortune ! But then the awful 
responsibility I had undertaken ! to speak for the first time in a strange 
court ; the expectations the culprit had evidently formed of my talents ; all 
these, and a crowd of similar notions, kept whirling through my mind. I 
tossed about all night, fearing the morning would find me exhausted and 
incompetent; in a word, the day dawned on me a miserable fellow ! 

" I got up, feverish and nervous. I walked out before breakfast, striv- 
ing to collect my thoughts and tranquillize my feelings. It was a bright 
morning. The air was pure and frosty. I bathed my forehead and hands 
in a beautiful running stream, but could not allay the fever-heat that raged 
within. I returned to breakfast, but could not eat. A single cup of coffee 
formed my repast. It was time to go to court, and I went there with a 
throbbing heart. I believe, if it had not been for the thoughts of my little 
wife in her lonely log-house, I should have given back to the man his hun- 
dred dollars, and relinquished the cause. I took my seat, looking, I am 
convinced, more like the culprit than the rogue I was to defend. 

" When time came for me to speak, my heart died within me. I arose, 
embarrassed and dismayed, and stammered in opening .my cause. I went 
on from bad to worse, and felt as if I were going down hill. Just then, the 
public prosecutor (Grundy), a man of talents, but somewhat rough in his 



I92 BEN HARDIN. 

practice, made a sarcastic remark on something I had said. It was like an 
electric spark, and ran tingling through every vein in my body. In an 
instant my diffidence was gone. My whole spirit was in arms. I answered 
with promptness and bitterness, for I felt the cruelty of such an attack upon 
a novice in my situation. The public prosecutor made a kind of apology. 
This, from a man of his redoubted powers, was a vast concession. I 
renewed my argument with a fearless glow, carried the case through 
triumphantly, and the man was acquitted. 

"This was the making of me. Everybody was curious to know who 
this new lawyer was, that had suddenly risen among them, and bearded the 
prosecuting attorney-general at the very outset. The story of my debut at 
the inn, on the preceding evening, when I knocked down a bully and kicked 
him out of doors for striking an old man, was circulated with favorable exag- 
gerations. Even my very beardless chin and juvenile countenance were in 
my favor, for people gave me far more credit than I really deserved. The 
chance business which occurs in our country courts came thronging upon me. 
I was repeatedly employed in other causes, and, by Saturday night, when the 
court closed, and I had paid my bill at the inn, I found myself with a hun- 
dred and fifty dollars in silver, three hundred dollars in notes, and a horse 
that I afterward sold for two hundred dollars more. 

" Never did miser gloat on his money with more delight. I locked the 
door of my room ; piled the money in a heap upon the table ; walked around 
it ; sat with my elbows on the table, and my chin upon my hands, and gazed 
upon it. Was I thinking of the money ? No ! I was thinking of my little 
wife at home. Another sleepless night ensued ; but what a night of golden 
fancies and splendid air-castles ! As soon as the morning dawned I was 
up, mounted the borrowed horse with which I had come to court, and led 
the other, which I had received as a fee. All the way I was delighting 
myself with the thoughts of the surprise I had in store for my little wife, for 
both of us had expetted nothing but that I should spend all the money I 
had borrowed, and should return in debt. 

" Our meeting was joyous, as you may suppose; but I played the part 
of the Indian hunter, who, when he returns from the chase, never for a time 
speaks of his success. She had prepared a snug little rustic meal for me, 
and while it was getting ready, I seated myself at an old-fashioned desk, in 
one corner, and began to count over my money and put it away. She came 
to me before I had finished, and asked me who I had collected the money 
for. 

" • For myself, to be sure,' replied I, with affected coolness; ' I made it 
at court.' 

" She looked at. me for a moment in the face, incredulously. I tried to 
keep my countenance, and to play the Indian, but it would not do. My 
muscles began to twitch ; my feelings all at once gave way. I caught her 






GOVERNOR WILLIAM P. DUVAL. 1 93 

in my arms, laughed, cried, and danced about the room like a crazy man. 
From that time forward, we never wanted for money." 

He was elected to Congress in 1813, serving one session. In 
1823 he was appointed by President Monroe Governor of the Terri- 
tory of Florida. He was reappointed by both Presidents Adams, 
and again by Jackson, serving until 1834. 

He began the practice of law in 1804 at Bardstown, where Grundy 
and Rowan were already in the full tide of professional renown and 
success. After he entered political life he seems to have given over 
professional pursuits. His posthumous fame indeed rests rather on 
his colloquial powers than on his forensic achievements. 

During the Texan war with Mexico he was subjected to a great 
sorrow, by an event that thrilled the country as never before. The 
Texans under the lead of Houston were struggling for independence. 
Their valor and heroism excited sympathy and admiration throughout 
the United States, and nowhere greater than in Kentucky. Governor 
Duval had two sons (Burr and John), the first of whom recruited one 
hundred men of the flower of Nelson county youth — his brother John 
being of the number — and with them joined the Texan army. They 
were all captured with Fannin's men at the affair of the Alamo, and 
were treacherously slain with their ill-fated leader, save John Duval 
and a deaf man by the name of Mason, who alone of the one hundred 
returned. 

Governor Duval was, as already intimated, a fascinating and fluent 
talker. One informant relates that whenever or wherever he stopped, 
on the street or elsewhere, a crowd gathered to listen. During his 
residence in Florida he was accustomed to send to his old Nelson 
friends graphic accounts of his residence in the land of flowers, and of 
the Indian hostilities then pending. Another venerable gentleman 
thus speaks of him: "I knew Governor Duval and saw him fre- 
quently at Hartford. I never knew a more charming conversational- 
ist. It is impossible to exaggerate his powers in this respect. If he 
emerged from his lodgings the public seemed to have its eye upon 
him. The moment he paused an admiring company would gather 
around. He did all the talking, and his hearers never wearied." 

Said Mrs. Helm: "I remember Governor Duval. He was fond 
of singing and sang well himself. I recall the old song, ' John Brown's 
two little Indian boys,' as rendered by him for my amusement in my 
childhood. He was a most charming man socially; but my father 
(Mr. Hardin) thought him deceitful." 

13 






194 BEN HARDIN. 

Another who knew him contrasted him with Dr. Christopher Rudd. 
" Rudd had an exhaustless fund of witty anecdotes and his humor 
was exuberant. Duval's charm was in graphic narrative and vivid 
description. I once made the journey of several hours in a stage- 
coach from Bardstown to Springfield. It was at that day by no means 
a smooth one. Duval was my companion, and so completely was I 
fascinated by his uninterrupted conversation that I was startled when 
the journey ended, so entirely had I been oblivious of time, dis- 
tance, and surroundings." 

Duval and Washington Irving contracted a warm friendship — the 
former occupying a place in the social circle not unlike that occupied 
by the latter in the world of letters. 

Politically, Governor Duval supported the Jeffersonian school of 
politics. He advocated the establishment of a national bank in 1814 
— in opposition to the policy of Mr. Madison — but which the latter 
approved two years afterward. He favored the vigorous prosecution 
of the war of 18 12, and raised a company of six months' men for the 
service.* When, at the close of Mr. Adams' administration, Jeffer- 
sonian republicanism had branched into Whigs and Democrats, Gov- 
ernor Duval adhered to the latter, and became a partisan of Jackson. 

He was a manly, vigorous speaker. His reported speeches are 
characterized by exalted sentiments and a fervid patriotism. He 
added to superior talents the virtue of unswerving integrity and all 
the genial graces that mark the perfect gentleman. Late in life he 
was described as a short, fleshy, heavy-set man, not over five feet six 
inches high, flabby cheeks, and an inveterate tobacco chewer. In 
1848 he moved to Texas. He died in Washington City, March 19, 
1854. 

IV. — Ben Chapeze. 

Among the leaders of the Bardstown bar in Mr. Hardin's time, for 
over twenty years, ranked Benjamin Chapeze. He was born at Tren- 
ton, N. J., March 27, 1787. His father, Dr. Henry Chapeze, was a 
native of France. He came to America during the revolutionary war, 
and held the post of surgeon in the American army during that period. 
After peace he married Sarah Kenny, a native of Ireland. At an 
early day he removed to Bardstown, where he resided until his death, 
which occurred about 18 10. His son was educated at the school of 
the noted Priestly. In his early manhood Ben betook himself to the 
occupation of a wagoner. 

*The well-known Duff Green enlisted in this company. See " Facts and Suggestions." 



BEN CHAPEZE. 195 

In these days of steamboats and railroads there is little conception 
of the large number of persons who pursued the business of wagoning 
in Kentucky in early times. From the general depots for goods on 
the Ohio river merchandise was transported by wagons to all the inte- 
rior towns, many of which were busy centers of trade. On one occa- 
sion a company of five wagons started from Louisville to Lexington, 
one of which was driven by young Chapeze. The roads were bad 
and his load was top-heavy. In eight or ten miles of his destination 
his wagon overturned, injuring its contents to some extent. The 
merchant at Lexington, to whom the goods belonged, sued him for 
damages and levied an attachment on his team. Chapeze was about 
twenty-three years of age, and, though he had never looked into a law 
book, he had some character as a talker and reasoner. His fellow- 
teamsters had confidence in his defense and his ability to make it, but 
knowing his great diffidence they did not scruple to spur his courage 
with liquor. He argued his own case with such ability that he easily 
defeated his adversary. May 7, 18 12, he married Elizabeth Shep- 
herd, daughter of Adam Shepherd, one of the early settlers of Ken- 
tucky. 

Shepherd was the first man who lived outside a fort in Bullitt 
county. He settled Shepherdsville, and for him the town was named. 
Elizabeth Shepherd proved a worthy helpmeet of a worthy man. She 
recognized that talent in her husband which his own modesty pre- 
vented him realizing. It is said, too, that he had no natural liking 
for books nor any inclination to become a lawyer. His wife was more 
enterprising and ambitious. She had great influence over him, and 
exerted it to turn him to the law. After his marriage he had settled 
on a small farm in Bullitt county, which he cultivated. He was doubt- 
less not an altogether thrifty farmer, and from that or some other cause 
he became involved in a lawsuit. He was defendant in an action before 
Wilford Lee, Esq., a justice of the peace. Lee was a sensible man 
and a good citizen, and, as will be seen, was of exceedingly gener- 
ous impulses.* As in the Lexington case, he again conducted his 
defense. He was without law books, and would have been ignorant 
of their use. if he had had them. He seems to have intuitively appre- 
ciated the importance of precedent and authority. For this purpose 
he produced a Bible at the trial, from which he read, and quotations 
from which he incorporated into his argument. His argument won 
his case and deeply impressed Mr. Lee. After the trial the latter 



* Wilford Lee was the father of the late Colonel Phil Lee, a distinguished member of the Louisville 
bar. 



I96 BEN HARDIN. 

urged Chapeze to turn his attention to the law. He responded his 
poverty, that a family depended on him for support, that he had not 
even money enough to buy books. Lee asked how much the neces- 
sary books would cost, and being informed about three hundred dol- 
lars, he offered to loan the money. Chapeze was reluctant to incur 
so serious a liability, apprehensive of his ability to repay. Lee was, 
however, generously persistent, professing his willingness to take the 
hazard. Between the arguments of Lee and the persuasions of Mrs. 
Chapeze, all hesitation was finally overcome, the money was borrowed, 
the books were bought, and study begun. 

So far as he had direction in his legal training, Judge John Rowan, 
of Bardstown, was his preceptor and friend. But his studies were 
chiefly conducted on a small farm on Long Lick creek in Bullitt county. 
Here he lived in a log cabin with his family and studied two years. 
He utilized his time — working at his books of evenings and mornings, 
at the noon cessation of labor, and even in the field when stopping 
for his horse to rest. Of the profit from the cultivation of the Long 
Lick farm no record remains — but the result of a two years' cultiva- 
tion of a vigorous intellect was his admission to the bar. This was in 
1815. 

He located first in Shepherdsville, where he continued two years at 
practice. He then removed to Elizabethtown, where he remained 
about the same period. In 1820 he located at Bardstown. After 
removal to Bardstown his career was eminently successful. He rode 
the circuit — practicing outside of Nelson, in Meade, Hardin, Bullitt, 
Breckinridge, Spencer, Washington, and Marion counties. He had 
a practice more or less extensive in all these counties, as well as a 
large and lucrative business in the Court of Appeals. The reported 
decisions of that court show not only his numerous retainers, but the 
curious reader will find evidences of his superior lawyership in his 
petitions for rehearing formerly published with the decisions. He was 
employed in many celebrated cases, in all of which he acquitted him- 
self with distinguished credit. One who heard his argument in 
the noted case of DeParcq vs. Rice says his effort was surpassed by 
none of the counsel engaged — among whom were Ben Hardin, J.J. 
Crittenden, C. A. Wickliffe, and John Rowan. 

He was a man of great originality and strong natural powers. He 
was not extensively read outside of his profession. Of the law he 
was a painstaking, hardworking, and thorough student. The author 
has seen a folio manuscript volume of five hundred pages in Mr. 



BEN CHAPEZE. \gj 

Chapeze's handwriting embracing a general digest of the law. It was 
formerly the mode for genius to conceal its debt to books — undoubt- 
edly a weakness. The impression was created, and tradition has 
carefully preserved it, that Mr. Chapeze owed little to books. In 
truth, however, he owed just as much as any equally great lawyer. 
He possessed a rich, sonorous voice. A country boy, captivated by 
it, found no other way to describe it than that it sounded "deep as if 
coming up and out of a hogshead." His style of oratory was ornate 
and his tendency was to use words of Latin origin. In his last days 
his mind grew metaphysical and his public speeches lost some of their 
earlier fire and popularity. 

He was remarkable for great integrity of character. He was very 
generally called the "honest lawyer," from his candor and honesty. 
He abounded in charity and magnanimity. One who knew him, and 
was qualified to judge, summed up by calling him a "splendid man." 
Another speaks of him "as a lawyer of great ability and a man of 
singular worth and purity of character." "He was an industrious 
lawyer," said Governor Wickliffe. " His oratory was diffuse, but he 
had considerable power before a jury, especially in cases where he 
could array the under-growth against the upper-growth of society. In 
this way he was a man of great effectiveness." 

His dark complexion, long raven hair, and lustrous black eyes 
bespoke his French origin. He would have readily passed for a 
native of France, notwithstanding his moiety of Irish blood. He 
was a large man, of fine physique and presence. He was neat in 
dress and person, and courteous in manner. He was not much of a 
politician, having little inclination or ambition that way. He was 
twice an old court representative from Nelson in the Legislature — the 
last session a colleague of Mr. Hardin. On the close of that struggle 
he joined the Jackson Republicans — about that time called Demo- 
crats — who, for the most part, in Kentucky, had been new court men. 
In 1828 he was chosen elector on the Jackson ticket, and cast his vote 
for "Old Hickory." This was the limit of his political career. 

In September, 1839, he attended his last court at Elizabethtown. 
He was engaged in defense of a man charged with murder. The evi- 
dence being concluded, Mr. Chapeze was engaged in argument. After 
[speaking two hours he fell, overcome by exhaustion. He was carried 
to his hotel, and medical aid procured. A consultation of the physi- 
cians being held, blood-letting was agreed on. Mr. Hardin hearing 



I98 BEN HARDIN. 

said he, " don't let them bleed you ; you'll die if they bleed you. If 
you submit to it, I advise you first to have your will written," Mr. 
Chapeze replied that his will was already written, but promised to 
resist the bleeding. This promise, however, he did not keep. He 
was bled, as the practice then was, and at the end of nine days he was 
dead. His death occurred September 26, 1839. 

Mr. Chapeze's wife was a devout Catholic all her life, and reared 
her children in that faith. It was, however, only a short time before 
his death that he was received into that church. He died a recipient 
of its consolations. 

V. — John Hayes. 

John Hayes was the son of Thomas Hayes, a small farmer of lim- 
ited means, in Nelson county. His mother's name was Agnes. He 
was born in Lunenburg county, Virginia, in 1793, and removed in 
infancy, with his father's family, to Kentucky. After acquiring a fair 
education, a youthful talent for oratory turned his attention to the 
bar. He became a law student in the office of Judge John Rowan, at 
Bardstown, and in due time received license to practice. This latter 
event occurred June, 18 14. 

An old Scotchman, one Dr. McConochie, wrote a sketch in which 
he says that Hayes had little assistance in his early studies, "that he 
was an unlicked cub of the wilderness."* 

During his student days, so gossips said, he became enamored of 
a daughter of his preceptor. His affection was returned, and, after 
his admission to the bar, he ventured to ask Judge Rowan's consent 
to their marriage. The latter was an imperious, proud man, to whom 
such an alliance was distasteful, and he insultingly refused. That 
circumstance marked the beginning of a sad era in young Hayes' life. 
Before that time he had always been sober and exemplary in habits. 
The story goes that, crushed by disappointment, he immediately took 
the stage-coach for Louisville, where for weeks he sought solace in 
deep and protracted dissipation. Friends at length brought him 
home and sobered him, and started him afresh in life. He immedi- 
ately took, in popular esteem, high rank professionally. Clients 
came whenever he was in condition to attend to business ; but these 
periods were of short and uncertain duration. As life went on, his 
power of self-control grew weaker, and finally the time came when he 
was only able to break off debauch when assisted by his friends. 

* Leisure Hours, by James R. McConochie, published at Louisville in 1846, contains a sketch of 
John Hayes. 






JOHN HAYES. 1 99 

Colonel Wright, an old and respectable citizen of Bardstovvn, was 
his fast friend in many troubles, who often took him, helpless and 
filthy, from the gutter, washed him, sobered him, and dressed him. 
Thus renovated, he would start into practice at a term of court, show- 
ing wonderful resources and ability in the management of cases, and 
capacity to compete with the great lawyers he encountered. But 
these redeeming intervals rapidly waned. He was a member of the 
Legislature, from Nelson county, in 1819. He was once an unsuc- 
cessful candidate for Congress against Mr. Hardin. 

It was, however, his wonderful oratory that brought him fame and 
secured him posthumous renown. An address delivered by him at 
Bardstown on the anniversary of Washington's birth in 1829 has been 
described as of surpassing eloquence. Not only were the young swayed 
like the reed before the storm, but old men and women wept like chil- 
dren. "It has been my fortune," said one who was present, "to 
have heard some of the finest orators of this country and of England, 
but never have I witnessed anything like the enthusiasm with which 
this address was received by the audience. It broke out at the close 
of every sentence in long and reiterated plaudits." 

On another occasion he so transported a Shelby county jury as to 
obtain the extravagant verdict of fifteen hundred dollars for injury to 
a horse. The court, as a matter of course, set it aside. The follow- 
ing incident illustrates the versatility of his powers : One McCown 
had undertaken to build a two-story jail in Nelson county. He was 
not only a good workman, but an exceedingly upright man. But he 
miscalculated the expense of his undertaking. On completing the 
first story he discovered that he had already expended for labor and 
material the entire sum he was to receive for the whole building. Not- 
withstanding this, he continued his labor, completing the jail in the 
best style of workmanship. At the succeeding fiscal court of the 
county the justices proposed to reimburse him for his actual outlay 
above the sum he had received. Hayes happened to be present while 
the matter was under consideration, and spoke against it so eloquently 
that the claim was unanimously rejected. It so happened that Hayes 
had long been an honorary guest of the principal hotel of Bardstown, 
whose proprietor was a son-in-law of McCown. After the rejection 
of the claim, the landlord charged Hayes with ingratitude; that he 
had furnished him board and drink without pay ; but told him he would 
shelter him no longer. Where Hayes spent that night was unknown. 
Next morning, however, he again appeared in the fiscal court, moved 






200 BEN HARDIN. 

a reconsideration of McCown's claim, and advocated it so eloquently 
that it was allowed without dissent. 

He rarely got so deeply intoxicated he could not talk intelligently. 
One night with a hilarious crowd, and far gone himself, he was called 
on to preach a sermon. The crucifixion was his subject, and so elo- 
quently impressive and solemn did he become that, as an eye-witness 
expressed it, "he had the last drunken devil bathed in tears." Few 
more eloquent men ever lived in America; but Mr. Hardin, who judged 
all eloquence by the solidity of the argument, said he lacked tact, and 
that he would always say some foolish thing that could be turned 
against him. He was serious and solemn in manner. He never 
laughed. His invective has been described as terrific, his pathos as 
melting. 

He was rather tall, slender, and spare in person, of fair complexion, 
fine intellectual development, with commonplace face (save when 
speaking), light hair, and blue eyes. In repose there seemed some 
indescribable deficiency in expression. His voice was of remarkable 
compass, and had about it the attraction of a musical instrument. 
Some one has described it as having trumpet notes. His distinctness 
and power of enunciation were especially marked. A graceful man- 
ner, a fluent diction, an impressionable and glowing nature, and that 
occult thing called personal magnetism, these, added to oratorical gifts, 
marked a combination and a form on which, indeed, the gods might 
have set their seal. 

He was imitated and quoted, says McConochie, "by students and 
other aspirants after forensic fame," a reliable testimony of his merit. 
Henry Crittenden, in his canvass for Congress against P. H. Pope in 
1829, met his competitor for debate at Taylorsville. In the course of 
his address he was accustomed to read many printed documents. His 
voice being husky from repeated speaking, he asked John Hayes, who 
was present, to read for him. He was so charmed with Hayes' extraor- 
dinary elocutionary powers that he ceased to speak. He managed 
to have Hayes consume all his time reading documents.* 

"I knew a young man," said Mr. Hardin, referring to Hayes, 
" who was the finest orator I have ever heard. Great God ! how the 
boys would gather around him at a battalion muster. I have seen 
him pour in the hot shot, one after another, until he would set the 
whole battalion in a flame. " He was not only a prodigy as an orator, 

* This incident, with others, was related to the author on an Ohio river packet in May, 1885, by that 
interesting and accomplished gentleman, the late Andrew J. Ballard, of Louisville, at the time en route 
to visit old friends at Owensboro. In the August following he was dead. " If we did but know," says 
Dr. Holmes, " if we did but know how to question these charming old people before it is too late." 



JOHN HAYES. 201 

but had a respectable talent for poetry. McConochie speaks of the 
Washingtoniad) an unpublished poem by Hayes, as creditable to his 
muse. His colloquial powers were excellent and diversified, amusing 
the lively with his wit, entertaining and instructing the serious with his 
knowledge, the scholar with his learning, and the politician with his 
sagacity. His powers of memory were remarkable. On one occasion, a 
bet was made that he could commit any chapter in the Bible in fifteen 
minutes. One of the wagering parties went in search of him. He 
was found in a state of maudlin drunkenness. He was informed of 
the bet, and a Bible furnished. The first chapter of Matthew was 
selected. In the required time he had repeated the genealogical 
line running from Adam to the Saviour. 

About 1815, he had a personal rencounter with James Guthrie, 
subsequently distinguished for many important public services. It 
occurred at Bardstown. Guthrie and Hayes, both young lawyers, 
had offices in adjoining rooms, with doors opening on the street, in 
front, and also on a back area. In the rear of the premises Hayes 
trespassed on Guthrie's domain, which the latter forbid, threatening 
to cowhide him if he did not desist. The trespass was repeated, and 
Guthrie fulfilled his threat. Hayes, being the inferior physically, 
was unable to resist the gross indignity. He, however, provided 
himself with a pistol, and shot Guthrie on sight, inflicting a severe 
wound. Collins says the latter was confined for three years from its 
effects, and attributed the difficulty to political differences. The 
author's informant thought its foundation was a grudge growing out 
of professional rivalry.* 

At this period of his career, Hayes had not wholly surrendered to 
the indulgence that subsequently wrecked him. The court records 
in Nelson county throw not a little light on certain pages in his life. 
In less than a year after he came to the bar — March 22, 18 15 — there 
is an entry that John Hayes and Charles A. Wickliffe be fined ten 
pounds each, "for contempt in the presence of the court." It is a 
reasonable conjecture that this joint offense resulted from a personal 
altercation in the sacred and peaceable precincts of the temple of jus- 
tice. Shortly afterward, Wickliffe's fine was remitted, and that of 
Hayes abated to five dollars, showing, perhaps, that the latter was 
the more culpable. 

After an interval of two vears — during which the silence of the 
records may argue proper decorum, on October 17, 1817 — after three 
successive fines had been entered against Hayes, of ten dollars each, 

* The venerable Tgnatius Mattingly, of Bardstown. 



202 BEN HARDIN. 

for contempt, he was committed to jail for six hours. That these 
contempts were involuntary or unintentional seems fairly to be 
inferred from the subsequent remission of the fines. He, however, 
suffered the ignominy of the imprisonment. The year following there 
appears but one fine of five dollars. In July, 1819, two fines for con- 
tempt were entered — twenty and ten dollars — and. to cap the climax 
of misfortune, he was suspended from practice for six months. Again, 
however, the court relented, and the order of suspension was revoked 
and the larger fine remitted. Here these mournful entries terminate, 
and with them, substantially, ended his professional career — a career 
that had been brief, brilliant, but erratic. The simple story that may be 
deduced from these formal records of sin and repentance — of refor- 
mation and relapse — of desperate strivings for manly rectitude and 
helplessly falling away — is more vivid and pathetic than words can 
make it. j 

Hayes was melancholy from childhood. His brother George 
always maintained the belief that John was a lunatic. His father's 
will was set aside for mental defect — Mr. Hardin, counsel in the case, I 
characterizing the elder Hayes as "wind-shaken." The metaphys- 
ical McConochie admitted that John betrayed "symptoms of real 
madness." He diagnosed it as a "hypochondriacal affection which 
he inherited from his paternal ancestors."' This natural defect in his 
latter days was exaggerated by an irregular and dissipated life so that 
before the end, this erring child of genius was a physical, mental, and 
moral wreck. 

The cause and manner of his death were long a matter of uncer- 
tainty. He was traveling from Bardstown to Bloomfield on a sum- 
mer day. Comparatively sober when he set out, he called at a still- 
house by the way and soon was drunk. Next morning, July 24, 1830, 
not far away his dead body was found by the roadside. Human hair 
and blood on the end of a rail projecting from a fence and a fracture 
of the skull seemed to indicate the manner of death ; yet it was uncer- 
tain whether he had, in a mad moment, inflicted the injury himself or 
been thrown by his horse. The shock to the public mind, over the 
question as to either theory, soon grew to be a matter of indifference. 

But " murder will out. " Years afterward a man died in Nelson 
county who, in the article of death, confessed that he had murdered 
Hayes. He was engaged as the distiller at the still-house where the 
ill-fated man had his last debauch. In his drunkenness the distiller 
discovered some money which he took. He then killed Hayes by a 



CHARLES ANDERSON WICKLIFFE. 



203 



blow on the head with a hammer, and hid his body till nightfall. Con- 
veying it to the spot where found, he ingeniously prepared the appear- 
ances of suicide or accidental death. Poor Hayes! His unhappy life 
was a miserable failure. His large endowment of genius was entailed 
with misery. Yet it is remarkable how the memories of many vir- 
tuous, sober, and steady-going men of his day, who achieved so much 
more, have been long covered by the placid waters of oblivion, while 
tradition lovingly treasures reminiscences of the silver-tongued orator 
and never wearies of the story of his tragic fate. 



VI. — Charles Anderson Wickliffe. 

Governor Wickliffe, the youngest of the nine children of Charles 
and Lydia Hardin Wickliffe, was born June 8, 1788, in a log cabin on 
Sulphur run, a branch of Cartwright creek, six miles south-west of 




WlCKLAND, THE HOME OF GOVERNOR WlCKLIFFE. AT BARDSTOWN. 

Springfield, Ky. His mother was a daughter of Martin Hardin, of 
Fauquier county, Va., and sister to Sarah Hardin (Ben Hardin's 
mother), and to Colonel John Hardin, referred to heretofore in these 
pages. His parents were Virginians by birth, who had removed to 
Kentucky about 1786. His early education was limited to the scant 
opportunities of his time and locality. In 1 804-5 ne spent a year at 
Bardstown, under the tuition of Rev. Dr. Wilson. The ensuing nine 
months he was instructed by Rev. Dr. James Blythe, acting president 



204 BEN HARDIN. 

of Transylvania University. He studied law with Martin D. Hardin 
at Frankfort, and on admission to the bar, located at Bardstown. 

After the war of 1812 began, Mr. Wickliffe quit his office and 
entered the military service as a private. He was soon appointed aid 
to General Winlock, but performed no active duty. He was consec- 
utively elected for 1812 and 18 13 member of the Legislature from 
Nelson county. When tidings of the battle of River Raisin reached 
Frankfort, Governor Shelby, at the instance of the Legislature, took 
the field and called for volunteers. Governor Wickliffe was among 
those who responded, and received the appointment of aid to General 
Caldwell. He rendered valuable services at the battle of the Thames. 
In 1816, he succeeded Mr. Hardin as Commonwealth's Attorney 
in the Bardstown district. In 1820 and 1821 he was again a member 
of the Legislature. In 1823, he succeeded Mr. Hardin in Congress 
from the Bardstown district. His congressional service at this time, 
by successive re-elections, continued until 1833. When the election 
for President, in 1825, was carried into the House, he voted for 
Jackson — in opposition to the majority of his colleagues. This act 
increased his majority the succeeding election two thousand votes. 
He was elected by the House as one of the managers of the impeach- 
ment of Judge Peck before the Senate, and made one of the ablest 
speeches in the trial. In 1833, 1834, and 1835, he was again a mem- 
ber of the Kentucky House of Representatives. In 1834, ne was 
elected speaker after an animated contest — over Daniel Breck and 
John L. Helm. In 1836, he defeated Elijah Hise, the Van Buren 
candidate for lieutenant-governor, by a majority of thirty-three hun- 
dred and thirty- eight. On the death of Governor Clark, which 
occurred October 5, 1839, Mr. Wickliffe then became governor for 
the rest of the term. 

He was appointed postmaster-general in President Tyler's cabinet, 
September 3, 1841, and so continued until the end of that administra- 
tion. In 1844, voyaging from Old Point Comfort to Baltimore, he 
narrowly escaped death at the hands of a lunatic, who struck him 
twice in the breast with a clasp knife. In 1845, he was sent by Presi- 
dent Polk on a secret mission to Texas, connected with the annexation 
of that republic. February 18, 1841, in the contest for United States 
Senator, resulting in the choice of James T. Morehead, Governor 
Wickliffe received twenty votes. 

In 1849, he and Mr. Hardin were delegates from Nelson county to 
the constitutional convention. He was an active and influential mem- 



CHARLES ANDERSON' WICKLIFFE. 205 

ber of that body, taking advanced views of constitutional reform. A 
decade before, he had opposed a constitutional convention, which 
afforded the noted Thomas F. Marshall, in his "Old Guard" serial, 
an opportunity for assailing him for inconsistency. It was during his 
service in the convention that he took occasion to review and defend 
his public career. Mr. Hardin, in part, provoked this. In speaking 
in vindication of his own political course, Mr. Hardin had said " that 
it had been so traced that any man can see and read it. But, sir. I 
do not attempt to trace the position of my honorable colleague. He 
has the advantage of me in that particular. If I were asked in what 
part of the heavens the Aurora Boreaiis dwelleth, how could I tell ? 
As the poet says : 

" ' Like the Boreaiis race 
That flits ere ye can point its place.' " 

Mr. Wickliffe's reply to these and similar insinuations of political 
instability has now grown to be of historic interest, and is worthy a 
place in this sketch. He spoke as follows : 

" I was elected a member of Congress from what was called the Louis- 
ville district, amidst the conflict for the presidency of the United States then 
waged between those distinguished individuals, Clay, Crawford, Jackson, 
Adams, and Calhoun. In that contest, so long as the statesman from Ken- 
tuckv was in the field, I was for him, as was at that time nine-tenths of the 
State of Kentucky; and I have no doubt the gentleman (Mr. Chrisman), if 
old enough to take part and cast his vote, voted for him in that contest. This 
election for the office of President, as neither candidate received a majority, 
devolved on the House of Representatives, of which I was a humble mem- 
ber—one of the twelve delegates from this State. As such I was called upon 
to cast the sovereign voice of Kentucky between General Jackson and Mr. 
Adams. At that point, perhaps, commenced, in estimation of some who 
never change, my political sins. Independent of my own judgment as to 
what was the voice of Kentucky, and particularly to those who had sent me 
to proclaim their voice, I was furnished with official light by legislative reso- 
lution. The citizens of Kentucky were undivided in sentiment. The pop- 
ular voice everywhere proclaimed that, as between Jackson and Adams, it 
was the duty, aye, the bounden duty of the delegates from Kentucky to cast 
her vote against Adams and in favor of Jackson. 

" We were not left to conjecture this opinion, and decide upon our duty 
by our own judgment; but your Legislature was then in session, and I have 
the resolution they passed and the speeches made by the statesmen of that 
time, instructing me and calling upon me, as one of the delegates charged 
with that high trust, by considerations that it is not necessary for me to state, 



206 BEN HARDIN. 

to cast the vote as I did give it. It was in accordance with my own judgment, 
and I gave it with pleasure, but that, though, has caused me trouble — yet 
no regret, no tears. When I returned home to my constituency, to give an 
account of my stewardship in thus carrying out their will and the orders of 
the Legislature, I found the very men — yes, sir, men who charged me with 
political inconsistency, who had been instrumental in procuring this legis- 
lative mandate, whose speeches in the Legislature I hold in my hand — upon 
the stump, in my county and district, attempting to destroy the prospects of 
a young politician, to undermine the confidence of his constituency in him, 
because he had acted honestly, and obeyed the dictates of the Legislature, 
and, still higher, the commands of public sentiment upon him. 

" My constituency continued to return me to Congress for ten years, and 
as you know, Mr. President, and you can do me the justice to say, longer 
than I desired to remain. There sprung up in my pathway, during a por- 
tion of my political pilgrimage in the national councils, questions about 
which at one time there seemed to be no division among the politicians or 
the population of this State. I allude to the necessity of the United States 
Bank. I looked upon the power of Congress to charter an institution of that 
kind as a question which had received the settled opinions of the people, or, 
as lawyers term it, it was res adjudicata. It was only then a question of pub- 
lic policy and necessity. I voted to re-charter that bank because I labored 
under the belief of its necessity, inculcated by events which took place in 
the war of 1812, and the consequent evils growing out of it, a deranged and 
prostrated paper currency. I had looked to that institution as a great puri- 
fier and regulator of the State paper currency. I thought General Jackson 
committed an error when he vetoed the bill to re-charter that bank. Was I 
alone in Kentucky in this opinion among those who had voted with me, and 
who with me contributed to the elevation to the presidency of that great 
man ? I thought him wrong in some measures that succeeded the veto of 
the act to re-charter that institution, and this difference upon a question of 
policy respecting the currency separated me from what was then called the 
Jackson party in Kentucky. And during the excitement of subsequent elec- 
tions and contests in the Commonwealth of Kentucky, this difference of opin- 
ion necessarily called down upon me the denunciation of the partisan press 
of the day. I defended myself, and in this defense I have no doubt I often 
dealt blows as hard as those which I received, and probably as often unde- 
served. 

" Mr. President: Sixty winters have made the impress of their frosts 
upon my head, and men of but to-day, and others, whose years have not 
improved their habits or softened their feelings, take pleasure in perpetuating 
their names by connecting them with political sins imputed to me. Among 
their charges, sir, I understand that the delegate has referred to the fact that 
I joined the administration of Mr. John Tyler. 



CHARLES ANDERSON VVICKLIFFE. 207 

"It is true, sir, that without any knowledge on my part, and without the 
slightest expectation, with no personal desire or political ambition to te 
myself from the retirement of a quiet and happy home, upon the disruption 
of the cabinet of Mr. Tyler, with the particulars of which I have nothing to 
do — and I would scorn to introduce them into this House, and harrow up 
the feelings or perpetrate an outrage on the humblest individual in this com- 
munity — unexpectedly, I received the appointment of postmaster-general, 
accompanied by a private letter from that gentleman, with whom I had lived 
and been associated at Washington for many years upon terms of the utmost 
personal kindness, and which, I suppose, begat in his bosom a confidence in 
my integrity and capacity for the duties of one of the most laborious depart- 
ments belonging to the Federal government. He placed my acceptance of 
that commission on the ground of private friendship to him, and without 
reference to political considerations. At the sacrifice of much of individual 
comfort and individual convenience, I had the temerity, without consult- 
ing the delegate from Wayne, or the other gentleman in this House who 
thinks with him, to accept that office and discharge the duties to the best of 
my humble capacity. What the judgment of public sentiment may be on 
my official acts and official duties, I will leave to be decided by my country, 
whose province it is, content to meet its decision. 

"It is not my purpose, nor is it necessary that I should speak of the meas- 
ures of that administration. When the member from Wayne himself shall 
pass from this stage of existence, when perhaps there will be left scarcely a 
gravestone to tell the passer-by who lies beneath the sod of the valley which 
covers his remains, the results of that administration, the consequences which 
flow from its measures, guided by no selfish or sectional policy, looking alone 
to the great interest of our great and common country — an administration 
standing amid the crash and rush of both great political parties for a time, 
each seeking who could be most powerful to crush it, disgrace its head and 
his humble associates — I say, when he shall have passed from the memory 
of man, and the historian shall come to record some of the events which 
have stamped and given it character — aye, sir, and I might almost say a new 
and independent destiny to our common country, and opened up to the world, 
broad and wide, her shores, her enterprise, and liberty to the oppressed of 
all the world — justice will be done to those whom it is the pleasure of others 
now seeking distinction to denounce and condemn. 

"Sir, during my association with that administration, the question of the 
annexation of Texas was presented. I saw, or, at least, I thought I saw, 
that, unless the United States acted, and acted promptly and with united 
public sentiment and political energy, our western limits would be iir< urn- 
scribed by the little stream of the Sabine, that we should have an empire 
hostile to our institutions spreading along the most defenseless portion of our 
southern frontier, the Southern slave-holding States. I thought I saw in the 



208 BEN HARDIN. 

annexation of that country an almost absolute necessity, if we desired to 
deserve and promote the prosperity, and give quiet to the planter and cotton 
grower of that portion of the Union. I did not act alone. I acted, it is 
true, in accordance with my own judgment, but I always like to have that 
judgment aided by the counsels of older heads. I consulted some of these 
from my own State. Their advice to me was, by all means, to accomplish 
the annexation of Texas; we must have it, and we ought to have it. And 
I was told that now was the time to take it. I need not say who they were; 
there is one, at least, present will bear witness. Sir, my surprise was great, 
I confess, when I looked across the mountains and saw the political conflict 
of the presidential race of 1 844, to find the very men who had advised me 
to the measure of annexation, on the stump denouncing it as a measure 
wicked, unholy, and unworthy of our people. Some of these men now 
arraign me by a charge of a change in my political sentiments. It was dur- 
ing my administration of the post-office department, I became satisfied that 
the opinions I had entertained on the necessity of a bank of the United 
States, as a government agent, was founded in error. In that department 
alone I found myself able to collect, by dimes and half-dimes, a revenue of 
between four and six millions of dollars, and safely to keep and disburse it 
without a United States bank. And the records of our country will not 
show in that department the loss of a single dollar by defalcation while I had 
the honor of managing its finances, save in the case of one postmaster, in 
the region of country near the locality from AYayne, I know not exactly 
where, whom I detected in having altered his post bills, and thus causing the 
loss of about forty dollars a year for some years. 

" Mr. President, it will be remembered that during the years 1841 and 
1842-3, the bank of the United States, which had originally charmed a por- 
tion of my native State to its support — the supposed necessity of whose 
existence had led me to believe that a great error had been committed by 
General Jackson, in the exercise of the veto power — exploded. When the 
stock-holders entered its vaults and opened its books, examined its papers- 
and exposed its financial operations for a series of fifteen or twenty years, 
there was an exposure of political corruption and fraud in the financial 
operations of that bank, which stunk in the nostrils of the nation ; transac- 
tions which had been concealed from a committee of Congress, sent to make 
an investigation into the condition of the bank ; at the head of which was 
McDuffie and Colonel Johnson, of our State. Yes, Mr. President, so con- 
cealed as to induce that committee to report that all that had been charged 
against the bank was untrue and false. I believed it. But when the books 
were opened to the stock-holders, they found their pockets robbed, the 
country cheated, and themselves bankrupt. Yes, sir ; there were children 
of a citizen of my own county, whose whole property was invested in that 
institution — some thirty or forty thousand dollars — robbed of every dollar 






CHARLES ANDERSON WICKLIFFE. 20Q 



of their estate. But that was only a drop in the bucket, compared with 
other cases of loss. I became satisfied, on looking into the transactions of 
the bank thus exposed, and on a review of my former opinions on that subject, 
and the opinions of that man, whose judgment was more matured, and dif- 
ferent from mine, and stronger, of course, and better informed, that he was 
governed by the highest sense of justice in vetoing the bill ; that he was 
right and I was wrong. And I had the boldness, the temerity, folly, per- 
haps, in the opinion of some, that feeling thus, not only to act upon a sense 
of right, but to acknowledge it. Who among us now advocates a charter of 
a United States Bank ? 

" I am not governed or influenced by the course of policy which has 
governed and influenced others. Whenever I am satisfied that I am wrong 
on a political question, a question of policy, or one involving a principle. I 
take the consequences of acknowledging that error. It is more magnani- 
mous, more consoling to my conscience than to persevere in error. And 
when the annexation of Texas was made the leading question upon which 
the contest for the presidency of 1844 was made to turn, I had no choice 
but the choice which my judgment dictated, and that was, that the annexa- 
tion of that country to the United States was demanded by the highest polit- 
ical and selfqDreserving principles in reference to our future destiny ; and if 
my venerated father, then reposing in his grave, had been living and a can- 
didate for the presidency, and had opposed the annexation of Texas, 1 would 
have cast my little mite in the scale against him. This contest again brought 
me into political union with the Democratic party. My principles of gov- 
ernment have ever been democratic, and I hope ever will be. They have 
not, nor will not be made to depend upon expediency, or the choice of a 
president. The charge of inconsistency, come from what quarter it may, 
will not change the honest purpose of my soul, a desire ever to do right. Mr. 
President, I am in one respect like King Lear, in the play. ' Tray, Blanche, 
and Sweetheart, all bark at me.' Bark on, I shall not calm you by whistling. 
" I beg pardon of this convention for thus throwing too much of my own 
affairs and political history before it. I could not do less. I hope I shall 
have no occasion again to do it, and I can assure the delegate who has been 
the immediate cause of thus compelling me to do what I most sincerely regret 
the necessity of doing, that I had no intention, purpose, or design of casting 
censure upon him, or wounding his feelings. My own self-respect and a 
regard for the decorum of this body forbid that I should, without cause, vio- 
late its sense of propriety." * 

In 1850 Governor Wickliffe, in connection with the distinguished 
lawyers, Squire Turner and S. S. Nicholas, was appointed by the State 
Legislature to revise the statutes. This duty was performed, and the 
Legislature having failed to provide for their publication by the day 

* Constitutional Debates of Kentucky, page 525. x 4 



2IO BEN HARDIN. 

fixed by law for them to go into operation, Governor Wickliffe 
arranged therefor on his own responsibility. 

In 1861 he took an active part in all pacific measures to avoid civil 
war. January 29th he in connection with others was sent as commis- 
sioner for Kentucky to a peace conference at Washington City, in 
response to an invitation by the Virginia Legislature. The peace con- 
ference was, however, fruitless, and so was the subsequent Border 
State Convention, to which he was elected a member in May follow- 
ing. At a special election for members of Congress, June 20th, Gov- 
ernor Wickliffe was elected, receiving 8,217 to 2,719 cast for General 
Read. In Congress he acted with the minority, and did what little 
he might to protect the rights of his constituents from invasion by the 
Government. In 1863, at the solicitations of prominent citizens, he 
became a candidate for governor against Colonel Bramlette, the Union 
or Government candidate. Throughout the State the election was 
controlled by the United States troops, thus securing Bramlette's 
election. In 1864 he attended the Chicago Convention that nomi- 
nated General McClellan for the presidency, and this substantially 
closed his political career. 

During most of his life Governor Wickliffe actively engaged in the 
practice of the law, realizing large pecuniary profit and extensive rep- 
utation. He was connected with many celebrated cases. DeParcq 
vs. Rice may be mentioned. He practiced law in the same region 
with Mr. Hardin, and was often his colleague, but most usually 
retained for the opposite side. By some he was regarded as Mr. Har- 
din's most formidable rival at the bar. Collins records that in Feb- 
ruary, 1869, he made a speech in the Court of Appeals two hours in 
duration, which, in view of his age and infirmity, surprised his friends 
by its ability. He had practiced law fifty eight years, and spoke of it 
as probably his last public speech, and so it proved. * He died at the 
residence of his son-in-law, in Howard county, Maryland, October 
31, 1869. 

About the commencement of the civil war he was crippled by an 
accident, compelling the use of crutches the remainder of his life. 
He presided at the Douglass Democratic State Convention in Louis- 
ville, January 8, 1 861. The author saw him the first and only time on 
that occasion. He was a magnificent specimen of manhood in old 
age. A large man, with massive head, and heavy brows, which, like 
his hair, were white as snow, and, withal, a presence of imposing dig- 
nity. Several years before his death he became blind. 

* Collins' History of Kentucky, Vol. I., page 194. 






CHARLES ANDERSON WICKLIFFE. 211 

He was a life-long member of the Presbyterian church. Asa com- 
missioner of the Presbytery of Louisville, he attended the celebrated 
General Assembly in St. Louis, in 1866, that resulted in the division 
of the church. He, with others, was expelled for signing the famous 
"Declaration and Testimony." 

Governor Wickliffe's long, varied, and successful career shows 
him to have been no ordinary man. Always a Whig, until the com- 
mencement of the civil war, his vote for Jackson, his service in Tyler's 
cabinet, and his natural conservatism, often subjected him to the 
charge, by his own party, of being a " trimmer." No petty pride of 
being called "consistent" restrained him from the path of duty in 
every emergency. He opposed a constitutional convention in 1838, 
when the country was quietly prospering under the existing constitu- 
tion. When, in 1849, increase of population, the unwise exercise of 
the appointing power, the sale of offices, and other causes, rendered 
constitutional reform necessary, he was its advocate. In 1850, a 
political adversary (Thomas F. Marshall *), who felt no kindness for 
him, thus wrote: "We know Charles A. Wickliffe well, and place a 
high estimate on his talents. We have heard him speak, often with 
great interest and advantage to ourselves. We have considered him 
a clear, but cool-headed, man, without enthusiasm or that inner fire 
that warms men into poetry or eloquence. Judgment, uninfluenced 
by passion or warm affection of any kind, has been the great faculty 
we have ascribed to him." Mr. Hardin regarded a lack of feeling the 
blemish of Mr. Wickliffe's oratory. Referring to a speech of the 
latter, Hardin observed : " I have yet to learn that a powder magazine 
can be exploded by throwing snow-balls at it." A kindlier critic 
once said: " Unlike many of our greatest statesmen, his private life 
is a model for imitation, unstained as it has ever been, by moral pollu- 
tion of any kind, and marked by a truthfulness and sincerity resulting 
from religious reverence. Mr. Wickliffe's eminent characteristics 
have ever been fast fidelity to his friends and a tenderness which ren- 
dered his presence agreeable and cheering in every domestic relation. 
He dignified every position he occupied and adorned every sphere in 
which he moved." f 

He differed from his kinsman (the subject of this work) in lack of 
the power of ridicule and faculty of wit. Also, differing in a personal 
characteristic, he deemed it worth his thought to observe a courtliness 
in dress as well as in manner. He had less insight of human nature 



* In Old Guard, page 15. 

t Sixty Years in a School Room, by Mrs. J. A. Tevis, page 349. 



212 BEN HARDIN. 

I 

and less understood the motives that actuated mankind. They had, 
however, a common attribute which marked them out from the mass 
of men, and that was, when convinced of the correctness of a principle 
or the rectitude of a line of action, they irrevocably committed them- 
selves to it regardless of all opposition or loss. At the Democratic 
National Convention, at Chicago, August, 1864, pending the late war, 
and when Kentuckians were regarded with distrust by the Government 
and the North, Governor Wickliffe, in the course of a speech, said: 

" Many of the best and most loyal citizens of Kentucky, among them 
twenty or thirty ladies, are now imprisoned by the military authorities in 
Louisville, in damp and dirty cells, with only straw to lie upon, and the 
coars*est fare ; and the newspapers of Louisville are forbidden to make the 
slightest allusion to this terrible state of affairs. I proclaim it here and now, 
at the risk of my liberty, perhaps of my life." 

His courage was as unflinching as his honor was exalted and his 
integrity inflexible. His life and character were nobly rounded. In 
early life he married Miss Crepps, the daughter of a pioneer hero. 
Five daughters and three sons were the fruit of this auspicious union. 
One of the daughters married Hon. Joseph Holt, of Washington City. 
Another married United States Senator Yulee, of Florida ; another 
Judge Merrick, of Maryland. The youngest married Captain W. N. 
Beckham, late of Bardstown, who died while a member of the State 
Legislature, a few years ago. Of his sons, Hon. J. Crepps Wickliffe 
has filled many posts of honor, and is now United States District 
Attorney for Kentucky ; Robert has been Congressman from Louisi- 
ana, and Charles, after serving with credit in the Mexican war, lost 
his life some years afterward by a fall from a horse.* 

* See Appendix, Note C 






DR. CHRISTOPHER A. RUDD. 213 



CHAPTER XVIII. 

KING JACKSON SUBDUES HIS ENEMY. 

IN the spring of 1833 Mr. Hardin resigned his seat in the State Sen- 
ate, at the time entertaining other aspirations. Charles A. Wick- 
liffe had succeeded Mr. Hardin as representative in Congress from the 
Bardstown district in 1823, and so continued for ten consecutive 
years. During that period he had won for himself a distinguished 
position in national politics. But he now declined re-election, and 
Mr. Hardin announced himself a candidate. 

Political feeling has rarely run higher than at this period. Presi- 
dent Jackson was vindictive toward his political enemies, on the one 
hand, and, on the other, warmly devoted to his friends. His friends 
were equally unqualified in their loyalty to him. The opposition 
called it "man worship." Many of the measures of the administra- 
tion not only struck down its opponents, but really filled them with 
apprehension for the peace and safety of the country. The opposition 
in Congress believed that in resisting these measures with all its 
energies it served the cause of constitutional liberty. The opportu- 
nity for engaging in such a contest was not a little alluring to one of 
Mr. Hardin's temperament. 

As Nelson county had been for over twenty successive years 
honored by having one of its citizens in Congress, this fact not unnat- 
urally bred jealousy among aspirants in other counties. Dr. Chris- 
topher A. Rudd, of Washington, became Mr. Hardin's competitor, 
and a formidable one he promised to be. He was a large man phys- 
ically, of fine presence, and a fluent and graceful speaker, possessing 
a pleasing voice. Great social qualities made him popular with the 
masses. He was convivial to an excess, unfortunately imperiling his 
personal health and welfare. He had an exhaustless fund of anecdote, 
which he related with charming effect. To cap the climax of political 
graces (for few were more potential in that day), he was a skillful 
performer on the fiddle. 

The canvass was prosecuted by both aspirants with vigor, and soon 
became warm and exciting. Both were of the same political school, 
and the issues between them were consequently of a personal and 



214 BEN HARDIN. 

local character, not the least important of which was the claim that 
Nelson county had monopolized the honors of the district. 

"Kit" Rudcl, as he was familiarly called, was a great favorite in 
Washington, a large county, then embracing the territory out of which 
Marion was subsequently created. He had an extensive relationship 
throughout the congressional district, and experience has shown that 
" blood will tell " under such circumstances. On the other hand, the 
district embraced the same territory in which Mr. Hardin constantly 
practiced his profession, and so he had the advantage of superior 
acquaintance. As a debater he overshadowed his competitor. When 
he felt effort to be necessary he was untiring and ready and fertile in 
resources. The public recognized his intellectual superiority over his 
genial riva\ For a short while Dr. Burr Harrison, of Bardstown, a 
politician distinguished in his day throughout the State, was also a 
candidate, but he withdrew before the election, leaving the contest 
between Rudd and Hardin. 

In 1830 George D. Prentice came from Connecticut to Kentucky 
for the purpose of writing the "Life of Henry Clay." This enterprise 
completed, he, under the auspices of Mr. Clay or his friends, estab- 
lished the Journal, a newspaper at Louisville, which, from the begin- 
ning, assumed to be the leading organ of the National Republican 
party in that State, of which Mr. Clay was undisputed leader. In 
1832 a weekly newspaper, the Focus, established in 1826, was merged 
into \ht Journal, thereafter styled the Journal and Focus. That the 
Journal and Focus favored Mr. Hardin's election is fairly inferable from 
the following extract which was published just a few days before the 
election : 

"We may avail ourselves of this opportunity to say that we have been 
more than once requested by gentlemen to whose wishes we always pay the 
utmost deference to express an opinion as to the comparative claims of Messrs. 
Hardin and Rudd upon the support of the National Republicans of the Sev- 
enth district, but we can not, under existing circumstances, comply with the 
suggestion. The freemen of Washington, Nelson, Spencer, and Bullitt are 
far better acquainted than ourselves with the two candidates before them, and 
consequently better qualified to judge of their respective merits or demerits. 
We presume that the first and leading object of our friends will be to elect a 
representative who will give an unequivocal and energetic support to the 
measures of his party; and if both candidates are alike trustworthy in this 
respect, the choice will unquestionably fall upon him who is best able to bear 
aloft the proud standard of National Republicanism where strong men meet 
in fierce encounter." 



MR. HARDIN S CIRCULAR. 2 I 5 

In the same issue are published extracts of a circular address of Mr. 
Hardin to his constituents. 

"Like everything emanating from that distinguished man," said the editor, 
"it is sound in its principles and strong and lucid in its reasonings. The 
author's remarks upon the United States Bank and the Laud Bill we give 
below, confident that they will be read advantageously in all parts of the 
State as well as in the section for which they were intended." 

The proposition to re-charter the United States Bank and distrib- 
ute the proceeds of the public lands, it may be observed, were leading 
issues dividing political parties of that day. 

"I am in favor of re-chartering the Bank of the United States," pro- 
ceeds Mr. Hardin. "I would not be opposed to any reasonable modifica- 
tion of its charter; and if it could not be re-chartered, then I would vote for 
a new bank. The situation of our country requires that the old bank should 
be re-chartered, if possible, because a new one can not be made until the 
charter of the present bank expires ; and when that occurs, and the present 
bank winds up, the pressure upon the people for the want of money will 
be great beyond anything this country has ever known, and the sacrifices of 
property will be alarming before a new bank can be chartered and relieve 
them. It is objected that foreigners own stock in the present bank. They 
have no part in the management of the bank, and they were not original 
subscribers of stock, but have purchased at second hand. Make a new bank, 
and I would then ask, how are foreigners to be prevented from buying stock 
from our own citizens who may own it? An American citizen is a free man, 
and claims the right as such of selling his property to any purchaser who will 
give him the best price, whether he is naturalized or not. But I will inquire 
of the farmers, who are nineteen parts out of twenty in this district, is it not 
for your interest to get for your produce and stock good money and a good 
price? How are you concerned in the question from what quarter of the 
world does the money come? We have no mines in America. All our 
money must come from other countries, and whether it is from Mexico, Peru, 
Spain, Portugal, France, or Great Britain, it belongs to politicians more saga- 
cious than I am to perceive it at all material to your interests. All banks 
are considered by some an evil ; but if that be the fact, a bank whose paper 
is at par all over America is a much less evil than those little State and inde- 
pendent banks whose paper is ever below par. We must either have a Hank 
of the United States or be overwhelmed by the depreciated paper of the 
banks of our own and sister States. Who among us will not admit the times 
now to be better in our moneyed transactions than in the days of independent 
banks ? 

"There is yet another question of great importance, which will come 
before Congress at the next session, that is, what shall be done with the pub- 



2l6 BEN HARDIN. 

lie lands? The national debt is now paid off; the revenue arising from the 
tariff meets every expense of the Government. Two propositions are now 
submitted to the American people : the new States claim the public lands 
within their limits, and the President recommends the adoption of such a 
measure; the old States claim their portion according to federal numbers. 
The quantity of public lands can not be less than six hundred millions of 
acres, worth, according to an estimate, three hundred million dollars. Ken- 
tucky's portion would be about fifteen million dollars. This money would 
be distributed each year as the sales were made, the amount distributed to 
Kentucky annually would be at least one hundred and fifty thousand dollars, 
which money, if the Legislature choose to apply it to defray the ordinary 
expenses of government, would relieve the people from taxation ; but, on the 
other hand, if the money should be applied to internal improvements, one 
hundred and fifty thousand dollars a year would make first-rate turnpike 
roads in Kentucky upon all the leading routes, and when made out of the 
public money they could be made free of tolls ; or, rather, if the wisdom of 
the Legislature should think it advisable to establish free schools, it would 
aid greatly to accomplish that object. In whatever way the Legislature 
might expend the money, it would circulate among us for our labor and pro- 
visions. The new States have had given to them by Congress already ten 
per cent, out of the sales of public lands within their limits for roads, canals, 
and schools, and when they get their proportion according to population, 
over and above that, justice has then been dealt out with a liberal hand to 
them. In the investigation of the question of what ought to be done with 
the public lands, the inquiry presents itself, how did the United States come 
by those lands ? All the right, title, and claim of Great Britain to them 
was ceded to the United States by the definitive treaty of 1783. The price 
paid was the blood shed and the money expended during the Revolution. 
"Virginia, New York, and Connecticut ceded their lands to the United 
States ; our Government purchased Louisiana of France, and gave $15,000.- 
000 for it; also Florida of Spain, and paid her $5,000,000. The public 
lands in Mississippi and Alabama were purchased of Georgia at the price of 
$1,250,000; and the United States gave the Yazoo Company $5,000,000 
for their claim to the same lands — making $26,250,000 paid in money, 
besides the numerous sums paid to extinguish the Indian title to the same 
lands. In addition to all this, the bloody wars waged with the Indian tribes 
for this land, with all the expenses attending the same. Kentucky has con- 
tributed her portion of all the money paid, and as to the blood shed in the 
Indian wars since 1783, she has spilled more than all the other States put 
together. Her claims can not be resisted, and her people ought never to 
surrender them. It is the only chance Kentucky will ever have to get any 
part of the public money, while the other States have, heretofore, had it 
expended within their limits by millions." 






THE TWENTY-THIRD CONGRESS. 2\J 

The election resulted in Mr. Hardin's favor. He carried all the 
counties of the district except Washington, yet so large was Dr. 
Rudd's majority in that single county that it came near overcoming 
the thousand and more majority received in the other counties. 
Although it was his native county, it voted against him in every race 
he made. One day, while the result was still uncertain, a crowd 
waited on the square at Bardstown for the coming of the mail coach 
with news. The tidings from Springfield were discouraging for Har- 
din and his friends. A man named Bean, who was present — a sup- 
porter of Rudd — jeeringly said to Mr. Hardin : "Old Red Fox, we 

have got you at last." "Washington county is too d d large," 

replied Mr. Hardin, " and must be divided." In a year or so after- 
ward division did occur, and Marion county was the product. 

The first session of the Twenty-third Congress began December 2, 
1833. Andrew Stevenson, of Virginia, who had often been a member, 
who was subsequently minister to St. James, and who had been 
elected speaker the three preceding terms, was again chosen presiding 
officer by a large vote. Kentucky was entitled to thirteen members 
by the last preceding apportionment. That delegation was prompt in 
attendance at the opening of the session. Besides Mr. Hardin were 
Chilton Allan, Thomas A. Marshall, Amos Davis, Richard M. John- 
son, Thomas Chilton, Chittenden Lyon, Martin Beatty, James Love, 
Christopher Tompkins, Patrick H. Pope, and Albert G. Hawes. The 
right to represent the Fifth district was claimed by two, Robert P. 
Letcher and Thomas P. Moore — the latter holding the certificate of 
election. 

Chilton Allan was a Virginian by birth, a lawyer by profession ; had 
had long experience in the State Legislature, and this session entered 
on his second congressional term. He had large capacity for affairs 
and was both patriotic and honest. 

The present was Judge Marshall's second term. This generation 
has not forgotten this amiable and learned jurist, who so long adorned 
the Appellate bench of the State. 

Mr. Davis entered Congress the first time the present session. He 
had represented Montgomery county in the State Legislature and had 
previously made several unsuccessful races for Congress. 

Richard M. Johnson, or Colonel "Dick" Johnson, as commonly 
called, is one of the familiar names in Kentucky history. His fame 
as a soldier in western wars, and his service in the State Legislature, 
as well as in both Houses of the national Congress, and also as Vice- 



2l8 BEN HARDIN. 






President of the United States, conspire to make him one of the most 
conspicuous figures of his time. Colonel Johnson headed the com- 
mittee on military affairs. 

Thomas Chilton — lawyer, preacher, and politician, was of unique 
talents. Practicing law at Elizabethtown, he was often associated with 
Mr. Hardin. Mr. Allen, in his "History of Kentucky," says: "At 
the bar and on the stump, Mr. Chilton, as a speaker, was interesting 
and of an agreeable style ; in the pulpit, however, his manner was 
changed. There he spoke with the sing-song peculiar to the sect to 
which he belonged " (" Separate Baptists"). This was his third term. 

Chittenden Lyon was the son of the celebrated Matthew Lyon. He 
had been continuously in Congress from 1827. 

Mr. Beatty had served in the State Legislature, and, for the first 
time, entered Congress the present session. 

James Love was a native of Nelson county, and educated at 
Bardstown. He had studied law and settled at Barboursville. From 
that district he was chosen to the Twenty-third Congress. He ended 
his career in Texas, whither he had removed. 

Judge Tompkins had served as circuit judge, had been an unsuc- 
cessful candidate for governor against Governor Desha, and entered 
Congress in 1831. He was one of the able men of the delegation. 

Patrick H. Pope, of Louisville, was a lawyer and a man of culture. 
He had the distinction of being the youngest member of the delega- 
tion, being only twenty-seven years of age. 

Albert G. Hawes was a native of Virginia, but belonged to a 
family well known in Kentucky. He was a genial man, of popular 
manners, and had proved himself an efficient member of the preced- 
ing Congress. He and Colonel Johnson were the only Kentucky 
members honored with chairmanships ; the former had charge of the 
post-office department. 

Governor Letcher and Mr. Moore had each served several terms 
in Congress as colleagues, but, by change of apportionment, fell in 
the same district, and were now contesting competitors. Letcher 
was of the Whig, Moore of the administration, party. Their contest 
was a matter of extensive debate. Mr. Hardin, as well as the entire 
Kentucky delegation, participated in the discussion. Possibly, as 
Letcher and his friends insinuated, partisanship, rather than its merits, 
decided the contest. Anyway, the House determined that neither 
was entitled to the seat, and a new election was ordered, which 
resulted in Letcher's favor. 



MR. HARDIN GETS TO WORK. 2IO, 

The present Congress contained not a few whose names were 
already well known or afterward became familiar to the public. 
Among these the following are mentioned : Franklin Pierce, of New 
Hampshire; Rufus Choate, John Quincy Adams, and Edward Ever- 
ett, of Massachusetts; C. C. Cambreleng and Millard Fillmore, of 
New York; John Y. Mason and Henry A. Wise, of Virginia; George 
McDuffie. of South Carolina; John Bell, Cave Johnson, James K. 
Polk, and David Crockett, of Tennessee, and Thomas Corwin, of 
Ohio. " The Twenty-third Congress," says Mr. Parton, "from the 
extraordinary number of its members who have filled important sta- 
tions, has been styled the ' Star Congress.' Five of them have been 
president, five vice-president, eight secretary of State, and twenty-five 
governor of a State." * 

Mr. Plardin served as a subaltern on an important committee — 
"the Judiciary" — of which John Bell was chairman. 

"The committees were so organized," said Mr. Hardin, "that although 
they (the Whigs) stood to their opponents about in the proportion of one 
hundred and twelve out of two hundred and forty they had in the commit- 
tees seldom more than two out of nine ; in some cases three, and in some 
cases only one. He would not pretend to conjecture the reasons which had 
governed the presiding officer in such an arrangement. He presumed it 
must be owing to their incompetency for public business. Certainly the fact 
was a strange one on any other supposition. And if that was the ground on 
which it had happened, he trusted their talents would burst forth on the 
nation in such a blaze that this state of things could not again occur." 

At an early day of the session Mr. Hardin made a speech on the 
Letcher-Moore contest, advocating the claims of the former, and took 
an active part in the debate whenever the question came before the 
House. Mr. Chilton introduced a resolution looking to granting pen- 
sions to those who had served in Indian wars in the West, which 
received Mr. Hardin's earnest support, and was adopted by the 
House. In opposition to appropriations he frequently spoke, but of 
this more will be said hereafter. The chief topic of the session was 
the removal of the Government deposits from the United States Bank. 
This bank had been established in 1816, the last year of Mr. Madison's 
administration, and had one or more branches in every State in the 
Union. It was a bank of issue and deposit, and having been chosen 
as the depository of the public moneys of the United States, its work- 
ing capital was immense and its prosperity in keeping. Its charter 
was for twenty years, and as the period of its expiration approached 

•Life of Andrew Jackson, Vol, III. 



220 BEN HARDIN. 



its friends began efforts for its re-charter. Unluckily the officers and 
directors of the bank failed to support General Jackson for the 
presidency, and thus excited his hostility. In 1833 the President 
announced that he had discovered that the bank used its money and 
power to influence the election of public officers. In that exigency 
"the path of duty," said he, "which the executive department ought 
to pursue was not doubtful." He accordingly requested his secretary 
of treasury, Mr. Duane. to remove the public moneys from the Unit- 
ed States Bank and deposit them in State banks. Declining to obey 
this request, Duane was removed and Roger B, Taney (afterward 
chief-justice) installed in his place. Mr. Taney, more obedient than 
Mr. Duane, did as he was bid, and great was the agitation that ensued. 
When Congress met, one of the earliest questions was concerning the 
removal of the deposits, parties being divided between those who 
approved and those who disapproved the removal. Aside from the 
results of the removal upon the trade and commerce of the country, 
the arguments for and against were much at equipoise. But undoubt- 
edly the effect of the withdrawal of such an immense sum from its busi- 
ness operations more or less embarrassed the bank. It measurably 
diminished its loans and required settlement by its customers. The 
President and his friends insisted that the bank was responsible in part 
for the public distress, and that it conducted its business so as to excite 
public discontent, which it untruly charged to the account of the 
removal of the deposits. Mr. Hardin was among those who espoused 
the cause of the bank. The longest speech he made during the first 
session of the Twenty-third Congress was in relation to the removal 
of the deposits, occupying part of two days in its delivery. Some 
extracts from that speech will be given. 

It had been charged that the union of the National Republican party 
(of which Clay was leader) and the State's Rights party (the followers 
of Calhoun) in favor of the bank was the result of a corrupt coalition. 
In refutation of this charge Mr. Hardin spoke at some length, closing 
thus : 

"What positions ought these two great parties to occupy on the present 
occasion? Each is friendly to civil liberty, as secured by the Constitution 
of the United States and the Constitutions of the several States. They dif- 
fer as to points of doctrine in the construction and exposition of those instru- 
ments ; but, in the great cardinal points of equality, liberty, and freedom, 
they unite most cordially, and differ only as to the mode of obtaining them. 
Both parties are equally enemies to all arbitrary governments, despots, and 



SPEECH ON REMOVAL OF DEPOSITS. 221 

tyrants, whether he should be called king, like William IV., or President, 
like Andrew Jackson. Shall Christians differ about immersion and sprink- 
ling when the enemy of their faith is in the field, and such difference 
might endanger the existence of their entire religion? Did our forefathers 
and teutonic ancestors, under Charles Martel, when they met the Mahome- 
dans on the plains of France, and fought for the existence of Christianity, 
act thus? No. They united and fought like heroes, and as became Chris- 
tians on such a momentous and awful occasion ; and left the fate of the battle 
to God, who gave them a splendid and glorious victory." 

Mr. Hardin had, as a member of Congress in 1816, opposed the 
charter of the bank on constitutional grounds. He and Mr. Clay had 
engaged in a debate on the subject at that time in which some unpleas- 
ant feeling was developed. As the advocate of the bank on the 
present occasion it became proper that he should explain his change of 
views. This he did as follows : 

"I had the honor to have a seat in this House when the present bank 
was chartered. I was then one of the youngest men in the House, and 
equally young as a politician. I voted against the bank bill. One reason 
was, I was then inclined to the opinion that Congress had not the power, by 
the Constitution, to charter a bank ; since which time I have thought much 
on the subject, and my reflections have resulted in the conviction of my 
error on that point, and a settled and firm belief that Congress has the 
power. The operations of the bank since that time, as it relates to the 
finances of the nation and the management of its fiscal affairs, have con- 
duced much to the change of my opinion. Whenever I discover that my 
opinions upon any subject are erroneous, I renounce them with pleasure. I 
am anxious to arrive at truth. If some other men in high places had less 
perverseness and obstinacy in adhering to their opinions, and shutting out 
lights that are cast on the subject, entertaining the ridiculous idea that it is a 
mark of weakness to give up an erroneous opinion, instead of its being a 
display of magnanimity, we would have the deposits returned, the bank 
rechartered, peace, plenty, happiness, and prosperity restored to this dis- 
tressed, embarrassed, and ruined country. Instead of thousands being 
thrown out of business, and compelled to beg their bread, with starvation 
staring them in the face, we would see the prices and productions of labor 
increased, commerce, manufactures, and agriculture resume their wonted 
activity, and the cheering hum and bustle of industry would be again heard 
all over the land. 

"In my opposition to the bank I had another reason. I believed the 
capital was too large; I knew that money was power; and that, owing to 
the interest which the United States had in that bank and the patronage the 
executive controlled in its management, it was possible that it might be con- 



222 BEN HARDIN. 

verted into a great political engine and co-operate with the executive of the 
government; and, whenever it did, it would then, in matter of fact, be the 
union of the purse and sword of the nation in the same hands, and thereby 
endanger the liberties of the people. My fearful anticipations have not been 
realized. The officers of the bank were caressed and courted ; but when 
they refused, they were then threatened. and menaced; which threats and 
menaces they defied. They would not become partisan tools in the hands 
of the executive, or, more properly speaking, the kitchen cabinet. Denun- 
ciations then followed, and all the train of misfortunes which, with the besom 
of destruction, have swept over this land, have been the consequence. I 
deem the bank the main check to executive usurpation and universal domi- 
nation ; and now I am propelled, by love of civil liberty, to be for the bank. 
Mr. Speaker, this explanation, as I remarked before, I owe to myself. Some 
of the members of the House know the editor of the Globe ; he occasionally 
glides around this hall, and looks like the ghost of famine. I have known 
him from his youth.* Although some dislike him, I am much attached to 
him ; and, good humoredly, the other day, he threatened me if I made a 
speech he would publish my speech of 1816, which, if done, would place 
me in an awkward situation, without the explanation which I have given. 
This is the apology I make for the present digression. It is not agreeable to 
me ; it is unpleasant for a man to speak of himself." 

Replying to the charge of the President and his friends that the 
bank had interfered in public elections, Mr. Hardin observed : 

" Another charge alleged against the bank is that it entered the political 
arena in the presidential election, and opposed the re-election of General 
Jackson. By this charge against the bank, I suppose the directors and other 
officers are intended and pointed at I will ask, Mr. Speaker, does any 
man in this country lose or forfeit his right of suffrage by following an honest 
calling for a support ? Surely not ; because a man is an officer in the bank 
of the United States, has he no civil, political, and religious rights? Are 
they impaired, abridged, or taken from him? or is he compelled to exercise 
them only in a particular way? This charge is a vital stab at the great 
republican doctrine of free suffrage. It has been attacked by this adminis- 
tration all over America ; and men in office have been made to feel it every- 
where; and from the conduct of General Jackson in relation to turning 
men out of office for opinion's sake, when that opinion was against him, I 
have no doubt that the whole and sole cause of offending in the bank and 
its officers is, that they would not prostitute the power of the bank to per- 
petuate his political power, and they themselves, individually, were opposed 
to his re-election. Had the bank and its officers subserved his purposes, we 
should have heard nothing of its being a ' monster ; ' it would then have 
been a necessary, valuable, and constitutional institution." 

* Francis P. Blair. 






SPEECH ON REMOVAL OF DEPOSITS. 223 

The most entertaining part of the speech is, undoubtedly, that in 
which he deals with General Jackson and his administration. The 
President in justifying his measures, in a communication to his cabi- 
net, had said they were necessary to preserve from contamination the 
morality and religion of the country. 

"The States," said Mr. Hardin, "by their municipal regulations, will 
take care of the morals of the people. All the President can do on that 
subject is to set a good example in his public and private conduct. As to 
religion, it belongs, of right, to our God; and He who took care of it and 
preserved it in the days of Tiberius, Caligula, and Nero, can and will take 
care of it in the days of Andrew Jackson." 

Mr. Hardin concludes his lengthy speech by a caustic review of 
General Jackson's military and civil career: 

" Much has been said on this floor in praise of General Jackson; his hav- 
ing fought through two wars, the Revolution and the late war; of his wounds 
and scars received in battle ; of the glorious and splendid victory achieved at 
New Orleans. A great part of this kind of argument was not intended for 
this House, but the White House, the palace. There the appropriate rewards 
await such services, and will in due time be distributed as a part of ' the 
spoils of victory.' Gentlemen know full well what kind of change will pass 
current there, and put a ticket in the great lottery where the prizes of favors 
and offices are to be drawn. I, however, must be indulged in one remark, 
that the victory of New Orleans ought now to be considered as public prop- 
erty, for well the nation has paid for it. The rewards, honors, and emolu- 
ments profusely showered down on General Jackson since that time entitle 
them to it; and when we add to that the misrule the people nave endured 
and suffered for the last five years, surely none will question the propriety of 
considering that victory now national property. Yet, at the same time, such 
rewards for a victory, however splendid, argue little for the military character 
of the nation. It seems to imply that the nation never achieved the like of 
it before, and never expects to equal it again. Such an opinion is a libel on 
the glorious achievements of the Revolution, and is a poor compliment on 
the warlike spirit of the nation, to be displayed hereafter in its proud march 
to future greatness. The truth is, that victory is the common change of all 
applicants for office, and they can not praise their change too much, either 
as to quality or quantity. The more they will puff it, the more will they gel 
for it. That is the reason why the battle behind a ditch and cotton bags has 
been so much exalted and extolled over the victories of the Revolution and 
the master-generalship displayed by Washington in concentrating the military 
forces before Yorktown and the capture of Lord Cornwallis, or the hard and 
well-fought bloody battles on the Niagara frontier in the last war. 






224 BEN HARDIN. 

"But, Mr. Speaker, admit all the encomiums that have been heaped 
upon General Jackson by his friends to be true ; the higher his military fame, 
the greater his popularity, the stronger his hold upon the affections of the 
people, the greater the necessity to watch with vigilance and jealousy every 
step he takes toward arbitrary power. From the weak and impotent man, 
who is ambitious, we have nothing to fear. The anger of the cat excites 
no alarm; the fury of the uncaged lion is terrible. 

' ' We have heard a great deal said in this House about our foreign rela- 
tions; what advantageous treaties have been concluded with other powers; 
and how, since the presidency of General Jackson, the name of the United 
States is dreaded abroad. It is not necessary to enter into a discussion, at 
this time, upon the advantages or disadvantages of the treaties concluded 
during the present administration, or how much General Jackson's name, 
lame, and authority make the United States dreaded abroad. I consider 
the whole of them empty boasting. But suppose the pompous accounts are 
all true, what do they prove in the present controversy ? I answer, nothing. 

"When was the Roman republic ever so formidable in her wars with 
foreign nations, or more dreaded by them, than in the days of Julius Caesar, 
when civil war and discord raged within the republic, and finally ended in 
the downfall of the government, and the elevation of Caesar to the dictator- 
ship ? When was England, anterior to the days of Cromwell, ever so power- 
ful as when that tyrant led her armies to victory and Blake commanded her 
fleets on the ocean ? All the surrounding nations trembled at his name. 
What was the state of the internal government of England at that time ? 
The republic was overthrown, the members of Parliament turned out of 
their hall by their own general, and he proclaimed protector of the nation. 

"Let us turn our eyes to France within our own times. Bonaparte was 
the victorious general of that republic. He was like unto Absalom of old; 
he had stolen away the hearts of the people. He turned his arms against 
the government he had fought for ; drove, at the point of the bayonet, the 
representatives of the people out of the hall of their deliberations ; prostrated 
the republic; and, under the names of ' First Consul,' and then ' Emperor,' 
became the tyrant of the people. He conquered Europe in a hundred 
dreadful battles. All nations feared him, and to foreign powers he dictated 
whatever treaties he pleased. The foreign relations of France, as it respected 
the extension of her empire or her influence at foreign courts, were well 
managed. But that was a poor ecpiivalent for the loss of liberty, for the 
cruel conscriptions which tore the youths of France from their fathers, 
mothers, and country, and bleached every field in Germany with their 
bones, and dyed every river with their blood. But God made an awful 
example of him at last; reverses overtook him in his mad career of conquest; 
misfortunes befell him, and his Maker, to let the world behold in him the 
instability of fortune and the ruin which awaits insatiable ambition, fixed 



SPEECH ON REMOVAL OF DEPOSITS. 225 

him on an island in the South Atlantic, perched on the crater of an extin- 
guished volcano, a fit emblem of his own fallen greatness and gloomy fort- 
unes. Sir, war abroad is sometimes necessary to a man when he wants to 
become the tyrant of the people. At all events, being dreaded and feared 
by other nations is no evidence that he is the father of the people and 
respecter of their rights and liberties. 

" He was to reform and cut down all useless offices. Instead of doing 
that, he has multiplied offices, agencies, and employments by the hundreds. 
The enormous expenditure of public money and an increase of officers are 
necessary to his plan of conducting the government. It increases the spoils 
of victory. In the increase of offices and expenditures additional power is 
given; it enlists more men under his standard. He and his friends abused 
his predecessor because one or two publishers of the law were changed. 
What has he done ? His conduct has destroyed the liberty of the press alto- 
gether, not by pains and penalties and the establishment of a censorship over 
it, but by corrupting it with patronage, largesses, and bribes. There is one 
way certain to high lucrative offices and employments ; that is, to get up a 
press to praise and laud General Jackson. The editors know this, and, not- 
withstanding their boasted patriotism and devotion to their country, their 
incorruptibility of heart, yet, when taken up to the top of this capitol and 
shown the good things of this land, and have them all promised to them, the 
flesh is weak ; their supposed inflexibility of character yields, and they can 
not say, as Duane did, ' Get behind me, Satan.' When such sterling integ- 
rity as Amos Kendall once had gives away, who can expect to have the 
firmness to resist? 

" Mr. Adams when he administered the government, was abused because 
he appointed members of Congress to the highest offices within the gift of 
the nation. Without inquiring whether this charge was true or not, what has 
been the conduct of the present administration ? The whole cabinet and 
diplomatic corps were composed of members of Congress. This is a most 
exceptionable practice. It is by patronage, and not by money, that the 
ministry in Great Britain, since the days of Walpole to this time, have cor- 
rupted and bought up the Parliament. I will not say that Congress has 
been purchased in that way, but I will say that it is a dangerous practice to 
the liberties of the people. It gives the President great power. It has 
been a belief of the existence of this power, I fear, which has kept unfilled 
the foreign missions to Great Britain and Russia. 

" General Jackson and his administration have attacked the free exercise 
of the right of suffrage. This has been done by punishing men for main- 
taining and enjoying the right to vote at elections as they pleased. The pun- 
ishment inflicted was to turn them out of office, if they were in office; if not 
in, to shut the door to office to all favor and promotion. But it has been more 
effectually done by giving offices, honors, promotions, and rich rewards to 

15 






226 BEN HARDIN. 

those who vote for him and support his administration. The man who is 
most abject and servile in his flatteries succeeds best. The vile sycophant 
is preferred to the honest and honorable man ; high-minded men withdraw 
into retirement, impressed with the solemn truth, that 

" ' When vice prevails, and impious men bear sway, 
The post of honor is the private station.' 

" This practice of letting men know, when they come to the polls, that 
they vote under the fear of punishment on the one hand, and the hope of 
reward on the other, will undermine this government, shake it to its center, 
and finally prostrate it on the earth. It must be stopped, or we are an 
undone people. To come to the polls, like horse jockeys into a race-fielJ, 
and inquire into the characters, keepers, and managers of the candidates 
before we vote, and then to vote for the one that is most likely to win the 
race, is a deplorable state of things. 

"Mr. Speaker, when we look at the present, and then review the past, 
and put them together, what is the prospect before us ? A proud, haughty, 
ambitious military man, who has charmed the imaginations of the people by 
the brilliancy of his victories, and won their affections by their admiration of 
his renown in arms, has, by their misplaced affection, been elevated to the 
first office of this Government, to the head of affairs. What has been his 
conduct in this high office ? Let facts speak, and not myself. They speak 
louder than words in this hall. They speak to the understanding and hearts 
of the people. 

" He has increased the expenditures of this Government to an enormous 
sum which was unknown to former times. He has multiplied offices, employ- 
ments, and agencies, to get his friends quartered on Government, in a man- 
ner unheard of before. He has invaded the liberty of the press, by bribing 
its conductors with lucrative offices and rich rewards. He has stabbed the 
free exercise of the right of suffrage to the heart, by punishing men for exer- 
cising it, and by rewarding others for prostituting it. He has invaded the 
independence of this House and the Senate chamber by coming into them to 
select all the high officers of the Government. He has attacked the reputa- 
Uon of the judiciary, and endeavored to injure their standing with the peo- 
ple, by imputing to them corruption. He has abused and attempted to 
degrade a portion of this House and the Senate, by charging them with hav- 
ing been bought up and 'fee'd' by the bank. He has seized the purse and 
sword of the nation, and arrogantly claims to be 'the Government itself.' 
He has, following the example set by usurpers of former days, endeavored 
to make the people believe that the other two departments of the Govern- 
ment are inimical to their interest and welfare, and that he alone is their 
friend. He has engrossed all power, and is as absolute as any crowned head 
in Europe. He only differs with them in the name. 






SPEECH ON REMOVAL OF DEPOSITS. 227 

" Let us see the means he has adopted to perpetuate his power and rivet 
our chains of slavery. All the officers of this government are a disciplined 
corps, with but few exceptions. The post-office department, including post- 
masters, clerks, mail contractors, and their dependents, furnishes thirty thou- 
sand. The other departments supply about an equal number, making some- 
thing like sixty thousand, scattered all over the United States, receiving and 
disbursing twenty-five millions of dollars a year. What an appalling phalanx 
this is for the people to encounter ! how dangerous to liberty ! And if he 
can only add to this powerful body the whole of the additional forces which 
the pet banks bring to his aid when united, this army of dependents and 
retainers will be resistless. He has chosen his successor — the last act of 
royalty. He has shown the young Caesar to the Praetorian guards at the 
seat of government, and last fall made the tour of the North with him to 
show him the distant legions. All the office-holders and office-hunters 
already begin to acknowledge his power, and recognize his right divine to 
the succession. They are making daily efforts to get the rays of his counte- 
nance to beam upon them ; but, as yet, through affected humility, he keeps 
his eyes on the ground, and will look no man in the face.* 

" What a dreary prospect we have now before us ! How desperate 
appears the cause of the people and of liberty ! The mariner, when lost in 
the wide and almost boundless Pacific, tossed by storms and driven by 
adverse currents, his water and provisions nearly exhausted, now and then 
is cheered with a green island rearing its head out of the waste of waters. 
So with the lost and wayworn traveler over the great desert of Sahara; 
nothing but a wide and almost illimitable ocean of sand around him ; from 
above, the sun parching his head, the sand blistering his feet beneath ; he, 
in this gloomy situation, occasionally meets with a well of water and a grove 
of refreshing trees, which has escaped the baneful and withering sirocco, to 
gladden his heart. But what, Mr. Speaker, have we before us in this wide 
waste, ruin, and desolation of all our rights, civil, political, and religious? 
I answer, nothing but hope and the justice of our cause are left to us. 
Hope, almost alone, sustained Washington frequently in the revolutionary 
war; and why should we, as yet, despair? No; let us not give up the ship; 
relief is coming. The people are breaking the chains that kept them spell- 
bound. They are awakening everywhere. New York has manifested a 
disposition to be free. Virginia has erected the standard of liberty, and not 
only her own sons, but the nation, will rally around it. Kentucky will 
know the banner — it was once her own — and, in this great contest, will be 
found combating by the side of her parent. The Senate is with us. The 
greatest men in the nation are there. Let us make one mighty effort, and 
burst asunder, as the strong man of old did, the cords that bind us. 

"I have, sir, been speaking of General Jackson and his administration 
politically, and considered what has been done during his administration as 

* Mr. Van Buren is alluded to. 



228 BEN HARDIN. 

done by himself; for the effect upon the nation is the same. It is due to 
that distinguished individual, although his official conduct is ruining our 
country and prostrating its best and dearest interests, to say, before I resume 
my seat, that I believe he is an honest and truthful man, and will not stoop 
to disguise his actions, however arbitrary and despotic they may be. His 
greatest fault is the strength and violence of his passions, which, instead of 
checking, he cherishes, feeds, and blows into a flame. He has a laudable love 
of glory, but he loves it to excess ; and hence he mistakes the selfish voice of 
flattery for the unbought sound of the trumpet of fame. He courts the 
applause of the world and posterity. Alas ! his ears hear nothing but the 
servile adulations and praise of the vile miscreants who surround him. He, 
from his habits as a general of our armies, has been taught to command, 
and is impatient of control ; the wretches who fatten upon the spoils of the 
nation avail themselves of his former education to keep the honest, honora- 
ble, and high-minded men, who rallied around him originally, from having 
any influence over him; nay, nearly the whole of them are excluded from 
his presence, and proscribed by the cabal that influence his conduct and 
direct his actions. But behold and see his most powerful friends when he 
came into power. Who are they? Calhoun, McDuffie, and Hamilton, 
in the South, and in the West, Bibb, Wickliffe, Chilton, Rowan, and Daniel. 
And where are they now ? In the ranks of his opponents. How has this 
been done? Because a ' malign influence ' has driven him from his course, 
and made him depart from his principles. They went in for principle, and 
not for men. 

" I have one more remark, Mr. Speaker, and then I have done : I once 
heard a good and pious man, who had long ministered at the altar of God, 
say, in finishing a sermon, that if he had made one convert, nay, brought 
one man who heard him to seriously think upon the great truths he had 
been delivering, he would consider himself amply rewarded for all his labor 
and all his toils on that day, because such was his conviction of the great 
truths of Christianity and the true religion of God, that a seeker would soon 
become a convert; so with myself, comparing small things with great, the 
matters of this world with the things to come hereafter ; if I have made one 
convert, nay, brought one man to think seriously upon the political truths I 
have attempted to deliver, I shall feel amply compensated for all my labor. 
But, Mr. Speaker, whatever may be the result, I thank my God for this 
opportunity and health sufficient (although lately greatly afflicted) to do my 
duty to my constituents and country ; and into the hands and safe-keeping 
of the Almighty, as far as I am concerned, do I commit the cause and des- 
tinies of the American people." 

The President was unshaken and undismayed by all denunciations 
and all clamor. The efforts of the bank and its friends, or as Mr. 
Benton had it ' ' the unhallowed combination between the moneyed 






THE END OF THE SESSION. 229 

and a political power," to recover from the blow of the removal of 
the despots was in vain. " King " Jackson (as Hardin called him on 
the " stump ") had dealt his enemy a mortal blow for which there was, 
as it proved, no remedy in political pharmacy. 

On May 16, 1834, Mr. Boon, of Indiana, called up a resolution 
previously offered by him fixing June 16th as the day for adjourn- 
ment. Mr. Hardin moved to strike out and insert "July 2d," and said 
that "he presumed the honorable member was not more solicitous 
than he to return to the bosom of his family, his business, both pro- 
fessional and private, calling upon him (Mr. Hardin) as urgently and 
as imperiously as did that of any other honorable member." After 
giving in detail various reasons why adjournment should not occur at 
so early a day as proposed, he closed by saying " he hoped he would 
get credit for the assertion that his anxiety to return to his home was 
as great as that of any man, feeling with Cowper, in the beautiful 
lines he attributes to Selkirk — 

" ' When I think of my own native land, 
In a moment I seem to be there; 
But, alas! recollection at hand 

Soon hurries me back to despair.'" 

June 2d, Mr. Stevenson resigned as speaker, having been nomi- 
nated by the President as minister to the English court. A lively 
contest for the vacancy ensued. Ten ballots occurred before any one 
received the requisite majority. On the first, second, and third bal- 
lots Richard H. Wilde, of Georgia, received the highest vote (Mr. 
Hardin receiving one on the second ballot). On the fourth, fifth, and 
sixth James K. Polk received a plurality. On the seventh, eighth, 
ninth, and tenth John Bell led Mr. Polk, and having a majority on 
the last ballot was chosen speaker. To the union of the enemies of 
Mr. Van Buren in the administration party and to the opposition the 
new speaker owed success. June 30th Congress adjourned, Mr. Har- 
din remaining until the closing hours of the session. 



230 BEN HARDIN. 



CHAPTER XIX. 

A SOJOURNER. 

HE who looked upon the meagerness of Washington City fifty years 
ago little dreamed that within a lifetime the beauty and magnifi- 
cence of to-day would be realized. If Mr. Hardin sometimes spoke 
of it disrespectfully, it must be remembered that in his day the national 
capital had few admirers. "A national capital," writes Mary Clem- 
mer Ames, " could only be fitly built by the nation. For many years 
the Congress of the United States refused to do this to any fit degree, 
and the result for more than one generation was the most forlorn city 
in Christendom." * 

It was during the period of Mr. Hardin's service in Congress 
that the well-known English traveler and writer, Miss Harriet Marti- 
neau, visited America. She spent some time at Washington, and her 
references to her experience and observations there are extremely 
graphic. 

"The city is a grand mistake," she writes. " Its only attraction is the 
seat of government, and it is thought it will not long continue to be so. The 
far western States begin to demand a more central seat for Congress, and the 
Cincinnati people are already speculating upon which of their hills or table- 
lands is to be the site of the new capital. Whenever this takes place all will 
be over with Washington ; ' thorns shall come up in her palaces, and the owl 
and the raven shall dwell in it,' while her sister cities of the East will be still 
spreading as fast as hands can be found to build thern. * * * * 

"The city itself is unlike any other that ever was seen, straggling out 
hither and thither, with a small house or two a quarter of a mile from any 
other ; so that in making calls in the city we had to cross ditches and stiles, 
and walk alternately on grass and pavement, and strike across a field to 
reach a street. * * * Then there was the society singularly com- 
pounded from the largest variety of elements — foreign embassadors, the 
American government, members of Congress from Clay and Webster down 
to Davy Crockett ; Benton, of Missouri, and Cuthbert, with the fresh Irish 
brogue, from Georgia; flippant young belles, and pious wives, dutifully 
attending their husbands and groaning over the frivolities of the place ; grave 
judges, saucy travelers, pert newspaper reporters, melancholy Indian chiefs, 
and timid New England ladies, trembling on the verge of the vortex. All 

* Ten Years in Washington, by Mary Clemmer Ames, page 67. 






THE NATIONAL CAPITAL IN 1835. 2 3 l 



this was wholly unlike anything that is to be seen in any other city in the 
world ; for all these are mixed up together in daily intercourse like the higher 
circle of a little village, and there is nothing else. * * * * 

" It is in Washington that varieties of manners are conspicuous. There 
the Southerners appear to the most advantage, and the New Englanders to 
the least; the easy and frank courtesy of the gentry of the South (with an 
occasional touch of arrogance, however,) contrasting favorably with the cau- 
tious, somewhat gauche, and too deferential air of the members of the North. 
One fancies one can tell a New England member in the open air, by his 
deprecatory walk. He seems to bear in mind perpetually that he can not 
fight a duel, while other people can. The odd mortals that wander in from 
the Western border can not be described as a class, for no one is like any- 
body else. One has a neck like a crane, making an interval of inches 
between stock and chin. Another wears no cravat, apparently because there 
is no room for one. The third has his lank, black hair parted down the 
middle, and disposed in bands in front, so that he is taken for a woman 
when only his head is seen in a crowd. A fourth puts an arm around the neck 
of a neighbor on either side, as he stands, seemingly afraid of his tall, wire- 
hung frame dropping to pieces if he tries to stand alone. A fifth makes 
something between a bow and a courtesy to everybody who comes near, and 
poses with a knowing air ; all having shrewd faces, and being probably very 
fit for the business they come upon. ***** 

" Some of our pleasantest evenings we spent at home in a society of the 
highest order. Ladies, literary and fashionable, or domestic, would spend 
an hour with us on their way from dinner or to a ball. Members of Con- 
gress would repose themselves by our fireside. Mr. Clay, sitting upright on 
the sofa, with his snuff-box ever in his hand, would discourse for many an 
hour, in his even, soft, deliberate tone, on any one of the great subjects of 
American policy which might happen to start, always amazing us with the 
moderation of estimate and speech which so impetuous a nature has been 
able to attain. Mr. Webster, leaning back at his ease, telling stories, crack- 
ing jokes, shaking the sofa with the burst after burst of laughter, or smoothly 
discoursing to the perfect felicity of the local part of one's constitution, would 
illuminate an evening now and then. Mr. Calhoun— the cast-iron man — 
who looks as if he had never been born and never could be extinguished, 
would come in sometimes, and keep our understandings upon a painful 
stretch for a short while, and leave us to take to pieces his close, rapid, 
theoretical, illustrated talk, and see what we could make of it."* 

In 1842, when it had changed little from the time of Mr. Hardin's 
last sojourn there, and of Miss Martineau's visit, it thus impressed a 
great English novelist, then traveling in the United States : 

"Western Travel, Vol I., page 144, et seq. John CJuincy Adams mention* meeting Miss Martineau, 
and says she was sprightly and entertaining, notwithstanding the ear-trumpet her deafness required. 
J. Q. Adams' Memoirs, Vol. IX., page 200. 



ox-y BEN HARDIN. 






"It is sometimes called the 'City of Magnificent Distances,' but it might, 
with greater propriety, be termed the ' City of Magnificent Intentions,' for 
it is only on taking a bird's eye view of it from the top of the capitol, that 
one can at all comprehend the vast designs of its projector, an aspiring 
Frenchman. Spacious avenues, that begin in nothing and lead nowhere ; 
streets, miles long, that only want houses, roads, and inhabitants; public 
buildings, that need but a public to be complete, and ornaments of great 
thoroughfares, which only lack great thoroughfares to ornament — are its 
leading features. One might fancy the season over, and most of the 
houses gone out of town forever with their masters. To the admirers of 
cities it is a Barmecide feast, a pleasant field for the imagination to rove in, 
a monument raised to a deceased project, with not even a legible inscription 
to record its departed greatness. 

" Such as it is it is likely to remain. It was originally chosen for the seat 
of government as a means of averting the conflicting jealousies and interests 
of the different States ; and very probably, too, as being remote from mobs 
— a consideration not to be slighted, even in America." * 

Mr. Dickens errs in assigning the cause that led to the selection of 
the District of Columbia for the site of the capital of the republic. 
Mr. James Parton is better authority on that subject, and the follow- 
ing is his interesting explanation of how the seat of government found 
its present location : 

"The city of Washington, we may premise, was the unforeseen result of 
an after-dinner conversation between Hamilton, Jefferson, and two or three 
' Potomac members ' of Congress. Hamilton, finding himself in the minority 
upon one of his fiscal measures, implored the aid of Jefferson's influence 
over the Virginia delegation. 'Dine with me to-morrow,' said Jefferson, 
' and I will invite some of the opposing members to meet you.' After din- 
ner the subject was discussed, and two members agreed to change their 
votes— to save the Union, of course. It was observed, by one of the gentle- 
men present, that the measure proposed would prove so repugnant to the 
Southern people that ' some concomitant measure should be adopted to 
sweeten it to them a little.' A lump of sugar would be needful after the 
medicine. The lump of sugar proposed and swallowed was the selection of 
a site for the permanent capital of the country in the wilderness on the 
banks of the Potomac. In how many ways have the fortunes and the 
morals of the United States been influenced by that talk over Mr. Jefferson's 
mahogany in the year 1790 ! " f 

The author of " Pickwick " was more deft at some other things than 
prophecy. Such as it was when he saw it, Washington remained sub- 
stantially until near the outbreak of the civil war . But as the clouds 

'-American Notes, by Charles Dickens, page 51. 

t Life of Andrew Jackson, by James Parton, Vol. III., page 596. 



"messing" in \v\shington. 233 

of war passed away and as the government put on new habiliments, 
its national city began to bedeck herself like a bride of the East. A 
half century has metamorphosed the straggling town, of whose future 
Dickens spoke so illy, into the handsomest capital of the world. In 
"American Notes " will also be found a description of a Washington 
hotel, and it is quite possible that the short-comings of that institution 
may have colored the epicurean Englishman's view of his surround- 
ings. Such or similar were the stopping places that welcomed Mr. 
Hardin and his colleagues in his day. 

Partly from motives of economy, possibly from a desire for greater 
comfort or luxury, " messing " was then a common mode of life among 
congressmen. Governor Thomas Corwin and Mr. Hardin messed 
together during the Twenty-third and Twenty-fourth Congresses, 
and other congenial Kentuckians, doubtless, completed the house- 
hold. Messing was less unfrequent in that day than now. By mess- 
ing is meant that several persons clubbed together, rented apart- 
ments, hired cooks, supplied their own larders, and thus maintained 
a domestic establishment during the session, which was broken up at 
the close. It was an independent as well as an economical arrange- 
ment, in which those participating exercised certain reserved powers 
over their expenditures, not possible at hotels and boarding-houses. 
There were, however, temptations to frugality in Washington life, the 
indulgence of which imperiled congressional prestige. The following 
is an illustration which also shows the possibilities of the franking priv- 
ilege when liberally exercised : It is related of Joe L — , a congressman 
once representing the Louisville district, that he carried the principles 
of saving economy so far as to send his soiled linen home by mail 
under his frank to be washed, and that his wife returned it after that 
process, adding to the address, " Free, Jennie L — ." 

It would hardly be proper to look into the mode of life of these 
messing sojourners too closely. It would be difficult to imagine a 
household embracing Ben Hardin and Tom Corwin other than good 
humored. These two, at least, were not given to drunkenness or 
wine, yet it may be admitted that gaming sometimes afforded amuse- 
ment. Congressmen frequently called at each other's lodgings, in a 
social way, and gatherings often occurred which were marked by 
roystering fun and good fellowship. A story is related of how, on 
one occasion, the Kentucky delegation wagered an oyster supper with 
the Georgia delegation that it could produce a Kentuckian " home- 
lier" or more ill-favored than the latter could bring from Georgia, the 



234 BEN HARDIN. 

test to take place on the occasion of the supper. The appointed 
evening arrived, and the Georgia delegation had its man present, who r 
by a trick of throwing all his face on one side, made himself decidedly 
hideous. The Kentucky entry had, unfortunately, become so drunk 
that he was unable to be on hand. The Kentuckians were on the 
point of surrendering in despair and paying the wager, when one of 
them was struck with a happy thought. Francis P. Blair, a Ken- 
tuckian, was, at that time, editor of the Globe, and altogether one of 
the most noted men about Washington. He was possessed of great 
spirit and energy, and accomplished an astonishing amount of editorial 
labor, but he was, in appearance, haggard, feeble, and emaciated, and 
his face had a most cadaverous cast. In short, he was the absolute 
reverse of good looking. The party with the happy thought above 
alluded to called a hack and drove to the Globe office. He found Blair, 
and hastily explained that a number of his old Kentucky friends were 
having an oyster party, and that they desired his presence, and would 
accept no denial. Unable to withstand this friendly compulsion, 
Blair stepped into the hack, and soon reached his destination. As he 
entered, it required little discernment to perceive that social hilarity 
was in the ascendant. Albert G. Hawes, a jolly member of the Ken- 
tucky delegation, discovered him, and, heartily disgusted with the 
Georgian's facial tricks, shouted : " Blair, look as the God of nature 
made you, and I'll be d — d if the oysters ain't ours ! "* 

Let it not, however, be supposed that all delegations, or even all 
members of those delegations, frequently gave way to these jovial 
moods. Mr. Hardin thus referred to the dignified manner of life of 
certain senators, in 1815 ; and while it is true the royal affectations he 
criticised had passed away in 1835, there still survived a formal court- 
liness that smacked of an aristocracy: 

" There was, as I said the other day, a small Federal party in the Senate, 
and if I said anything on that occasion offensive to the powdered heads of 
these gentlemen and their affected nobility, I will take it back ; but it was 
literally true. They lacked the ribbons and the star, and that was all ; they 
could not even board in the city, but must go to Georgetown and ride in 
their splendid carriages, so brilliant that when the sun struck upon them 
they gleamed as when the sun on the surrounding hills of Utica fell on the 
burnished arms of Csesar's soldiers." 



*Life of Sam Dale. Mr. Hawes possessed fine social qualities, and exuberant humor. John 

Quincy Adams, who was a good talker, but almost devoid of humor, referring to a trip of a party of 

ressmen in May, 1834, to Harper's Ferry, says: " Mr. Hawes talked much more than his share, 

sometimes to the great entertainment, and sometimes to the no small distaste, of the company." J. Q. 

Adams' Memoirs, Vol. IX., page 142. 






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2$6 BEN HARDIN. 

ngressmen had many other duties to perform, aside from those 
that arc reported in the debates and proceedings. Committee meet- 
ings and labor thereat, investigations in the congressional library* and 
elsewhere for needed facts and statistics, encountering the lobbyist 
and hearing his insidious speech, and entertaining the occasional con- 
stituent who came to the national capital sight-seeing or office hunt- 
in-, were some of the tasks, more or less agreeable, of the Represen- 
tative. Mr. Hardin was accustomed to get copies of the poll books 
of the various counties of his district, and from these send documents 
through the mails to his constituents. A discourteous postmaster at 
Bardstown, an intense Locofoco of the Jacksonian stripe, once refused 
to deliver these missives. So Mr. Hardin, on his return home, pro- 
cured a wagon and hauled them to the court-house, and there he 
distributed them, seasoning his favors with anathemas on the delin- 
quent official. 

Political " fences " at home and the general good of the " party " 
were matters of constant solicitude to the people's representative. 
In 1836 James Clark was the Whig, and Matthew Flournoy the Dem- 
ocratic, candidate for governor of the State. In 1832 the Democrats 
had elected that officer, and were now using efforts to choose his suc- 
cessor. "Unless a vigorous effort is made we shall lose the race," 
discouragingly wrote Robert P. Letcher from Kentucky to Mr. Crit- 
tenden at Washington. " It would be well to call all our delegation 
in Congress together," he continues, "and let each man determine to 
write six letters every twenty-four hours to his district in relation to 
tin- election of governor. I mean all except Ben Hardin. I should 
leave him to himself. Meet in the committee room, and let each man 
pledge himself to do his duty by writing letters forthwith. One Con- 
gress letter is worth a dozen from a private." Exactly what is meant 
by this reference to Mr. Hardin is not clear — whether kind or other- 
wise. Why it should have been otherwise is difficult to conjecture, 
as Hardin and Letcher were slightly connected, a brother of the latter 
having married a sister of Mrs. Hardin ; and besides, Mr. Hardin had 
spoken earnestly, ably, and often for Letcher in the latter's contest 
with Moore in the Twenty-third Congress. It is possible Letcher 
may have supposed that the difficulties of Mr. Hardin's penmanship 
might weaken the effect even of a " Congress letter," or subject the 
party to the danger of new and unforeseen issues through misinter- 
pretation of his correspondence. 



he library the book which Mr. Hardin took from my table and kept was transferred by the 
librarian from my charge t.. his." J. ( % ). Adams 1 Memoirs, Vol. IX., page 214. 



A PARLIAMENTARY GLADIATOR. 237 

It may be safely asserted that Mr. Hardin realized no other pecun- 
iary profit from his congressional service than his salary, and some 
professional fees in the Supreme Court. Political ethics had not 
become as much relaxed at that period as at a later day, when a seat 
in Congress opened a road to fortune, in which trod many of th< 
"honorable gentlemen." "Mr. Hardin was one of the old school of 
political morality." writes Colonel Ben Perley Poore, "and no blot 
sullied the fair fame of his long, although not continuous, congres- 
sional service." After his congressional career had ended, he indulged 
the following allusion to the little profit that had attended his service: 

" I had the misfortune, and I rather consider it so than otherwise, from 
time to time, to have had a seat in Congress, and I found I could not stand 
the sacrifice and pecuniary loss longer than for two or four years at a time. 
Then I had to quit, and resort again to the practice of the law to repair the 
loss. At every session I expended not less than two or three hundred dol- 
lars in purchasing documents to send among my constituents. I took care 
to buy something of value, important documents, good speeches, not too 
much or too little, and well made." 

The reports of congressional proceedings show that Mr. Hardin 
was an active and industrious member. His references to pending 
questions, and, much more, his discussions of them, evinced his 
familiarity with all their details and merits. When he spoke it was to 
utter his own views, and not to echo those of others. 

"He was," says Colonel Poore, "a defiant parliamentary gladiator on 
the floor. Standing in the aisle by the side of his desk, with his head erect 
and rather an arrogant air and tone o,f voice, he would point the index 
finger of his right hand (which was crooked, like a note of interrogation) 
at his opponent, and rain upon him interrogatories and propositions couched 
in unmistakable Anglo-Saxon." * 

John Quincy Adams, in his wonderful diary between 1833 and 
1837, when he, like Mr. Hardin, was a member of the House of Rep- 
resentatives, very frequently refers to the latter. In alluding to his 
speech on the extension of the pension list, in January, 1834, Adams 
says: "Hardin spoke about an hour, chiefly in reply to Burgess, 
whom he tomahawked without mercy, though he was not present. 
The hour expired while Hardin was speaking, but by the suspension 
of the rule he was allowed to finish his speech." 

In December, 1836, Adams mentions that "Boon, of Indiana, and 
Hardin, of Kentucky, spurted and bubbled for the sake of personal 
flings at me— Hardin indirectly. Boon directly. Ha rdin let out some 

■'■' Letter of Colonel Ben Perley Poore to author. 



238 BEN HARDIN. 

of his venom upon New England, and said we should have a little 
battle when we should come to debate the taking off the duties from 
grain and breadstuffs, because the crops had not failed in the States 
west of the mountains as they had in the Atlantic States." * 

It is doubted whether Mr. Hardin enjoyed much local popularity 
while at the capital ; in fact, the contrary may fairly be inferred. As 
a rule, he could safely be set down as an opponent of all appropria- 
tions, great or small, especially if connected with the district lobby. 
The mild aspiration of the Government clerk, not less than the impe- 
rious mandate of the President of these United States, found an ever- 
recurring obstacle in Mr. Hardin. The first named (in his estimation) 
was constantly taking the preliminary steps (unintentionally, no doubt, 
but recklessly) to bring upon the country the horrors of the French 
Revolution. His remarks on a proposition to create an additional 
clerk in the Department of State to assist in arranging and preserving 
the public archives clearly indicate that he strongly suspected the 
attachment of that class of American citizens to the principles of lib- 
erty. The following is the report : 

" Mr. Hardin's duty had led him frequently to look into the offices in our 
departments ; and he verily believed that one-half the number of clerks 
there employed could do the whole business. Like the gentleman from 
Massachusetts (Mr. Lincoln), whose speech had provoked such violent and 
undeserved attacks (although there was nothing exceptional about it, save 
that it had been more extended than was necessary, but was certainly a very 
clear and able speech), he believed that the arranging of these papers could 
be accomplished by a little extra labor of the clerks already employed. It 
seemed that these department clerks? had established an arbitrary rule respect- 
ing the portion of time that they were to labor. 

" Mr. Hardin knew very well that in the counting-houses in Philadelphia, 
in Baltimore, in Louisville, and Cincinnati, first-rate clerks were employed 
on salaries of five and six hundred dollars, and were daily employed for 
eight, ten, and twelve hours out of the twenty-four. But here were a parcel 
of clerks, some hundreds of them, who entered their offices about half-past 
nine, read the papers till ten, wrote a little, then smoked their cigars, and 
hung an mud till between two and three o'clock, and then all left their offices; 
or, if they remained one minute beyond that time they must receive extra 
pay. Let gentlemen look at the clerks of the courts, and they would find 
deputy clerks regularly laboring for twelve hours out of every twenty-four, 
on salaries of four and five hundred dollars. Yet here were great, big, fat, 
sleek gentlemen, who, if they worked three or four hours over the time, 
in" -.t have an extra compensation. 

1 '•' \i'" Memoirs, Vol. IX., page 324. Mr. Savage in his " Living Representative Men," 
spoke oi Hardin .1. having the reputation of being the terror of the House. Page 145. 



ATTORXEV-GEXERAL BUTLER. 



239 



" Mr. Hardin referred to the blue book to show the number of cler] 
the State Department. Here were thirteen of them who could Dot spare an 
hour apiece to assort, label, and index these records. Why not take ii by 
turns, one to-day and another to morrow ? It the}- could not do as mm 
this, where was the necessity of continuing such men in office ? Nm papi 1 - 
had, no doubt, accumulated, which required labeling as much as these 
It was their duty to label the whole of these papers Yet these fat and sleek 
gentlemen, who could only work three or four hours a day, were som 
your finest toast-makers at all public dinners; and he had no doubt thai 
many of the finest of those letter-writers, whose productions so enlightened 
the public, were trom among these same geniuses. If they could not work 
six hours a day, let them walk out of office — they were fat enough, anyhow — 
and let others take their places. It seemed that all governments had a nat- 
ural tendency to increase their expenditures, and went on growing more and 
more extravagant till they finally broke down, and there was a revolution. 
It was this which, in part, had brought about the revolution in France. 
They continued, as they proceeded in their downward course, to divide and 
subdivide the public service, and all who were employed were striving to 
increase their pay and diminish their labor/' 

Mr. Hardin did not stop at criticising the government clerk. In 
April, 1836, the general appropriation bill being before the House he 
proposed to strike out the item of one thousand dollars to Mr. Peters, 
the reporter of the Supreme Court, because certain decisions to which 
he alluded had been reported inaccurately. Another member, how- 
ever, having suggested that the reporter was considered an industrious 
man in his profession in Philadelphia, and that if he failed in his duty 
the proper remedy was removal, Mr. Hardin withdrew his motion, 
evidently not aware when he made it that he was questioning the 
attainments of a " Philadelphia lawyer." 

In 1835, while Mr. Van Buren's law partner, Benjamin F. Butler. 
of New York, was attorney-general, Congress was asked to provide a 
library for his use. Mr. Butler was not only a hypercritical lawyer, 
but it was charged that he always stood ready to justify by his legal 
opinions the greatest stretch of power the President saw fit to indulge, 
and the President at that period pressed his prerogative to its utmost 
tension. In 1835 the lunatic Lawrence attempted to assassinate Gen 
eral Jackson as he emerged from the capitol. but was arrested in the 
act. The physicians called to examine as to his mental condition 
pronounced him insane beyond question. General Jackson, who saw 
•everything of an exciting nature through the medium of his passions, 
declined to accept this decision, but insisted that Lawrence was the 



24O BEN HARDIN. 

tool of his enemies. Mr. Butler advised that while Lawrence might 
have delusions, yet that he was generally sane. In short, he was a 
thorough-paced courtier of the Polonius order. For such an official 
the opponents of the administration felt no partiality. Mr. Hardin's 
opposition was ostensibly placed on other grounds, but between the 
lines something of the above may be read. 

"He said he was utterly opposed to granting appropriations for separate 
libraries, either to the departments or to the attorney-general. He would will- 
ingly vote rather for an increase often thousand dollars more for the library of 
( longress, where he supposed the attorney-general, as well as the other heads 
of departments, might readily come for such books as they wanted. The 
application for books for the use of the attorney-general's office never, here- 
tofore, has been made ; and as this attorney-general had, with his public busi- 
ness, private practice to attend to, as well as former attorney-generals, the 
appropriation, consequently, would be of a private benefit, rather than to 
the public. For, if he practiced as they did — and doubtless he did — he must 
have his own books to enable him to do so. He wished the Congress library 
to be increased, desiring, like the ancient Roman, to see the capitol the 
finest building in the universe ; so ought, he thought, their library to be the 

it of their country * He opposed the appropriation believing that, from 
the day Congress would sanction a system of separate libraries, thenceforth 
their own would go down ; and he therefore rejoiced at having an opportu- 
nity to record his vote against the proposition." 

Formerly one of the most respectable bodies about the national 
capital was more or less known as the "naval lobby." It was a body 
that asked many favors of Congress — was entitled to many and 
received not a few. Mr. Hardin thought it received undue considera- 
tion, and in the Twenty-third and Twenty-fourth Congresses he was 
active in opposing its claims by vote and argument. February 18, 
1835, tne bill to increase the pay of naval officers being before the 
House for consideration, Mr. Hardin, in closing his remarks, is reported 
as follows : 

' Upon the subject of gratitude, he could call one fact to the recollection 
of gentlemen, that, if a man died an officer in the naval service, his widow 
ioned from five years to five years. He knew widows of meritorious 
officers in the army who were starving. One in his own neighborhood, 
whose husband, an officer in the army, fought at Raisin, Niagara, and at 
Mew 1 >rleans, who was now without a cent in the world; and he had brought 

tter f rom her to General Jacks on, stating that she was reduced to want 

•If Congress had !"••■., more imbued with Mr. Hardin's enthusiasm for learning, the new Congress- 
■ r.rv building, instead of being in the architects brain, or drawn on paper (its present stage), 

ind constituteda lit receptacle for the grand collection that 
11 library. (Note by author.) 






REMARKS ON NAVAL APPROPRIATIONS. 2J I 

and beggary, and the general promised to do all he could for her. He 1. 
a similar instance of a major in the army, who died at New Oilcans, whose 
widow and children were also reduced to want and beggary. I [ence it was 
that he said the navy got more than the army. He wished to God there 
was a law providing for the widows of all those who lost their lives in the 
service of their country. But he would again call the attention of the 1 [< 
to the contrast between the pay of the two services. Mr. Hardin then i 
an estimate of the different sums paid to the officers and (lews of various 
ships engaged during the late war. 

"Mr. Hardin then referred to the addresses of Commodore Porter, 
Lord Nelson, etc., to show that prize money was the greatest incentive 
sailors to fight well, relating an ancient anecdote to that effect, of a soldier, 
who, having lost his budget, as he called his wealth, on an assault, was the 
first to mount the breach, and recovered by the plunder of the town more 
than he had lost. On another occasion, being called on by his commodore 
to do the same, he requested some other man to take his place who had lost 
his budget, for he possessed one. A gentleman referred to a captain, \ >- 
terday, who had been twenty-nine years in the service, but who was not 
worth seven hundred dollars. Mr. Hardin said there were some men whom 
you could not make rich. But he would refer to the numerous captains in 
this city, living in the finest palaces — no, he must not say palaces — in the 
most splendid mansions, built by the public money they had obtained. 
Ask a commander how much he had made, and he would reply, why, in the 
last war, probably about one hundred thousand dollars. It was said, 

" 'Their march is on the mountain wave, 
Their home is on the deep.' 

" Their march here was too often from their mansions to the capitol, and 
their home was He observed several gentlemen in the gallery. 

" Mr. Hardin referred to the officers of the army who were then toiling 
in the West, and who were not represented by their committees, etc., and 
complained of the proposal of the army having been rejected by the select 
committee, and the navy alone taken up and acted on (Mr. Watmough 
explained), contrary to the just expectations of all. 

" In regard to a lavish expenditure of the public money, the history of 
the last three hundred years furnished us with one fact, that it was the nat- 
ural tendency of all governments to increase their expenditures from year to 
year. Such was the case with the governments of Europe, and he was 
afraid the government of the United States would exhibit the same melan- 
choly picture, that its expenses will be so increased that, at last, they will 
become too oppressive and onerous for the people to bear, and. according to 
the language of the other House, reform or revolution must be the end of it. 
It was the lavish waste of the public money that brought < 'harles I., of Eng- 

16 



2^2 BEN HARDIN. 

land, and Louis XVI., of France, to the block, and it is one of the main 
ses of all the revolutions of empires that have ever happened. Gentle- 
men say that the navy is a popular branch of the public service. He 
agreed. But ought that House to legislate for fashionable attachment? He 
knew there was a continual struggle to get expenditures on the seaboard. 
He had no wish to impeach the integrity of gentlemen who were so zealous 
on the subject of fortifications and other works on the seaboard, but they 
could not help being acted on by their feelings. In the language of Sir 
Robert Walpole, prime minister of England, he said they came up, year 
after vear, to be shorn like sheep. We, said Mr. Hardin, come from the 
interior every year to be shorn for your fortifications on the seaboard, but I, 
1't one, am not exactly like the sheep, for, although I might be willing to be 
shorn, I will make a noise about it. Mr. Hardin concluded by saying that 
he had a great many more observations which he wished to have offered on 
the present occasion, but he was unwilling to intrude too far upon the indul- 
gence afforded him by the House, for which he offered his acknowledg- 
ments, and he should probably take some other opportunity of giving his 
sentiments more at length to the public." 

Mr. Hardin's course in opposing appropriations so constantly and 
indiscriminately subjected him on one occasion to the hostile criticism 
of the impetuous Henry A. Wise, then a prominent figure in Con- 
gress. As to how Mr. Hardin was regarded in the House by his 
political adversaries may be inferred from the following remarks of the 
Virginia congressman : 

■• Mr. Speaker, one would be led to suppose, sir, that the gentleman, from 
his uniform and earnest opposition to all money bills, was fighting at his late 
1> triod of life for the fame of an economist and reformer. When the Alex- 
andria canal bill was up, there was the gentleman from Kentucky; when 
Hull's claim was before us, there was the gentleman from Kentucky; when 
Meade's claim was presented, there was the gentleman from Kentucky; and 
now that the navy bill is on its passage, there is still the gentleman from Ken- 
tucky. Such indiscriminate opposition to every description of claim we might 
suppose to proceed more from habit than from calculation. But, sir, when 
the Louisville and Portland canal bill came up, there was not the gentleman 
from Kentucky. And at the very moment the gentleman was so manfully 
opposing this reasonable increase of navy pay, we found him entertaining us 
with the most delightful eloquence upon the sufferings and services of the 
army, and perfectly content with the navy pay, when on a former occasion I 
have shown and now assert that the pay of the army is more than double that 
of the navy. The army, sir, is to the gentleman what the Louisville canal 
It is stationed in part in the West, and clears the path of settlers on the 
frontier. It is not regarded with the same contracted view as the navy is 



THE "TIBER. 243 

regarded by some, as solely for the seaboard, and therefore its servi< es and 
its pay are fully appreciated by the gentleman. Why does the gentleman not 
bleat a little when wool is plastered on him as well as when it is shorn off? 
The gentleman, sir, is no more shorn, nor is the West, by increasing the pay 
of the navy than by increasing the pay of the army. If there is one branch 
of the public service in which the whole country is more equally interested 
than in another, it is that of the navy." 

Not only was Mr. Hardin not the friend of the various persons and 
classes already referred to, but he was lacking in attachment for the 
locality itself. When it was proposed that Government take stock in 
a canal that was to connect Alexandria and Washington, he aided in 
defeating the measure, speaking twice on the subject. He was not 
even the uncalculating friend of Pennsylvania avenue (the pride of the 
national capital), across which flowed Tiber creek, a turbulent stream 
that in the days of the fathers of the Constitution meandered down to 
the Potomac with all the dignity of a "navigable stream," the waters 
of which were once intended " to be carried to the top of Congress 
house, to fall in a cascade twenty feet in height and fifty in breadth, 
and thence to run in three falls through the gardens into the grand 
canal,"' but which modern engineering has reduced to the ignoble 
office of an underground sewer.* On one occasion he inquired how it 
was possible the erection of stone arches over Tiber creek, and other 
repairs there, could require so large an appropriation as twelve hun- 
dred dollars ? He was not aware upon what principle there could be 
such an expenditure for this purpose maintained, unless it was that 
peculiar principle on which some people of this city were known to 
act, namely, to get as much money as they could and do as little work 
for it as possible. 

An attempt was made by various members to persuade Mr. Hardin 
that he was a representative of the District of Columbia as well as of 
his own district and State, and that its inhabitants were his constitu- 
ents and entitled to his special consideration. But from this doctrine 
he entirely dissented. He regarded all their demands with distrust, 
and deemed it but just that the cities of the district should take care 
of themselves as cities did elsewhere in the Union. Nevertheless, he 
found from sad experiences that he who would withstand the district 
lobby needed Roman fortitude and virtue, for its fertility of resource 
was unbounded and in constant requisition. Every blandishment that 



* In this good year (1887) the author stood upon the dome of the capitol and looked out for th 1 
waterway. Possibly he saw its " remains » straggling into the Potomac to the north-west, but a mature 
citizen standing by was not sure of tt, although he remembered when it crossed Pennsylvania aver 
its " winding flow." 



244 



BEN HARDIN. 



could influence, every appeal to the passions was invoked. The omnip- 
otence of beauty's smile spared neither youth nor age, and unequal 
was the contest between it and virtue. Now and then an obdurate 
member required sterner regimen. Instances were known about that 
period where he received assurances that unpleasant consequences 
would result from contumacy. Mr. Hardin, realizing the situation, thus 
discoursed on the subject in 1835 : 

■•It has been alleged that the people of this district ought to be the 
peculiar objects of our kind and munificent legislation, because they have 
no representative in Congress. When any one of the three cities in this 
district has business before Congress, its mayor and committees have the 
privilege of this hall. The people here have more weight in this House 
than the representatives of almost any State in the Union. The members of 
I Congress associate with them, partake of their hospitalities, and lend a kind 
ear to their importunities. These means they are not sparing of, but exceed- 
ingly liberal. Their attentions seem to increase or diminish as they think 
they can operate on the members, when they have some object in view. 
When these means fail on particular members, a resort is had to abuse and 
insult, and not unfrequently anonymous letters are sent to the rebellious 
and refractory members, some containing threats and menaces, and others 
are deterred from opposing them from the dread of slander and scurrility. 
For, as Sir James Mcintosh said in his celebrated defense of the French 
printer, who was prosecuted in England at the instance of Bonaparte, for a 
libel on the then existing French government, ' there was no man so low and 
debased, or so high and exalted, as to be entirely insensible to the approba- 
tion or disapprobation of his fellowmen.' 

"It is the opinion of mankind upon the actions of others that is the great 

ilator of the morality of the world. For man, when left alone, and unin- 
fluenced by the opinions of others, will run into excesses of every descrip- 
tion : 'His heart is deceitful above all things, and desperately wicked.' I 
am told that some of the people who live in, or are now in, this city, are so 
provoked at some of the members of this House for refusing to give and 
-rant, with a liberal hand, all they ask for that my honorable friend to the 
right, from New York (Mr. Mann), and fellow-laborer in this good cause of 
retrenchment, has called down upon himself, from some of them at least, so 

dl) a hate that he is not only under the ban of their displeasure, but even 
some of his old friends are threatened that if they do not abandon him they 

11 be put out of the pale of society. 

• A few of us here have to bear their cold disdains, scoffs, and contume- 

but I tell my worthy friends, who are deserving public servants, and 

especially my friend from Pennsylvania (Mr. Beaumont), now before me, 

steadfast and unwavering in the good cause of retrenchment and 



REMARKS ON THE DISTRICT LOBBY. 245 

reform, not in name, as is the fashion of the day, but in reality, not to be 
deterred, but persevere to the last. Rewards arc promised us elsewh< 1 
the smiles of onr constituents, and, at all events, an approving const ien< 
of which none can be deprived who believe they do right. As to myself, 
their taunts and scorns I cast back with proud disdain. 1 have been hen 
number of years, and always pursued the same policy, never to give away 
one dollar of the people's money unnecessarily. At the end of tli on, 

with a cheerful countenance and light heart, I journey toward the setting 
sun. When I reach the top of the western foot of the lofty Allegheny, 1 
look down upon the western world widespread out before me. In a moment 
my imagination views the great valley of the Mississippi, extending from the 
Allegheny in the East to the top of the Rocky mountains in the West, and 
from the frozen lakes of the North to the Gulf of Mexico in the South, aver- 
aging a width of two thousand miles and a length of twenty-five hundred — 
as large as half of Europe. Its great variety of climate ; an unparalleled fer- 
tility of soil; its bold and navigable rivers; the rapidly-increasing popula- 
tion, already spread over a vast extent; the honesty, morality, and industry 
of the people ; their simplicity of manners and energy of character, — when 
I compare these qualities with the people left behind ; their vanity, show, vain 
pomp, idle parade, and ridiculous pageantry; their prodigality, their effemi- 
nacy of character and insincerity of heart, my soul swells with becoming 
pride at the comparison, and turning toward the East, in the language of the 
dying Christian I am compelled to say, ' Farewell ! farewell ! vain world, I 
am going home ! ' " 



246 



BEN HARDIN. 



CHAPTER XX. 

THE FRENCH PARTY DEFENDS ITSELF. 

IN the spring of 1835, Mr. Hardin was again a candidate for Con- 
gress. Again it was his fortune to have a competitor, who, as 
happened two years previously, hailed from Washington county. 
Popular and powerful as was Dr. Rudd, much stronger, in many 
respects, was Governor John Pope. 

At the opening of the canvass, Governor Pope was sixty-five years 
of age, of large experience and great ability, and still retaining his 
faculties in full vigor. An important figure in State history, of whom 
little has been written by those who have essayed the task, and yet 
his career was of more than ordinary interest. His first step in public 
life, it must be admitted, was ominous. Using a homely phrase, "he 
stepped off the wrong foot." when, in the State Senate, in November, 
1799, he attempted to amend the "Resolutions of '98," unsuccess- 
fully, of course. If Kentucky ever had political gods, those same 
resolutions maybe thus classed. In 1800, he was chosen presidential 
elector, and voted for Thomas Jefferson, some amelioration, certainly, 
of his faux pas of the year before. 

In 1802, despite his iconoclastic disposition manifested in 1799, he 
was elected representative to the Legislature from Shelby county, 
where he then resided, and at which place he had been admitted to 
the bar. Not long after this event, he removed to Lexington, where 
he represented Fayette county in the Legislature in 1806 and 1807, 
being a colleague of Henry Clay in that body. Although yet a 
young man, he had achieved eminence in his profession and promi- 
nence in public affairs. In 1807, ne was elected United States 
Senator over General John Adair, one of the sitting members. 

The latter was so chagrined at defeat that he resigned his unex- 
pired term, and thus gave Henry Clay the opportunity of filling the 
vacancy. Before the expiration of Governor Pope's term, war with 
Great Britain was declared, which, unfortunately for his career, he 
opposed. Why he opposed a measure so popular in the West is most 
probably to be attributed to domestic influences. His first wife was 
the daughter of General William Christian and niece of Patrick Henry. 



JOHN POPE. 247 

She having died, he married Miss Johnson, daughter of the American 
consul at London, a sister of Mrs. John Quincy Adams, a woman of 
great beauty. Miss Johnson was of English birth, and, possibly, so far 
sympathized with the mother country as to use her influence with her 
husband. At the end of his term, as Henry Clay said of another, " he- 
was permitted to retire." 

He returned to the practice of his profession, in which he realized 
both reputation and profit. He was especially distinguished as an 
advocate in criminal cases. Amos Kendall, then but recently arrived 
from New England, gives an account in his Autobiography, of the 
trial in March, 18 15, at Lexington, of one Payne for wife-murder. 
After referring to other details of the case, he says: "Mr. Pope, in 
behalf of the prisoner, then commenced in a very eloquent strain, 
addressed to the feelings of the jury. He summed up the evidence 
very handsomely, but was led from his subject by many irrelevant 
ideas which seemed to strike him on the occasion, and at length made 
his discourse tedious. I left the court just at night, but was told he 
continued his argument until nearly ten, and, though he had spoken 
six hours, did not finish ! He seems to have no doubt of the fact, but 
hopes to save him on the plea of insanity ; but he is no madman, and 
if he should be saved, justice will mourn."* The jury convicted the 
prisoner, notwithstanding Pope's efforts, and he was sentenced to 
death. 

He was more successful in 1820 in defending Alerdice, in Green 
county, for murder. Although probably guilty, the prisoner was 
acquitted. "The effort of Mr. Pope on the occasion," says Mr. Allen, 
the historian, "was equal to any he had ever made before on a like 

occasion." f 

In 1 8 16, Governor George Madison died in office, and was suc- 
ceeded by Lieutenant-Governor Slaughter. The latter appointed 
Governor Pope his secretary of State. Kendall says that when he 
heard of the appointment, he was "thunderstruck." Pope, after his 
unlucky vote against the war with Great Britain, had been esteemed 
a Federalist — a party that had really passed out of existence, but the 
very name of which was still odious in the West. Kentucky was 
overwhelmingly anti-Federalist in sentiment, and so the whole State 
experienced the sensation of Kendall. The unpopularity of Pope 
undoubtedly caused the question to be sprung against Governor 
Slaughter, that he was a usurper, that the lieutenant-governor could 

* Autobiography, page 140. 

■J- Allen's History of Kentucky, page 371. 



248 



BEN HARDIN. 



not, as the Constitution then stood, succeed the governor on the lat- 
tcr's demise, and that the office consequently was vacant. This ques- 
tion became an issue in State politics, and Legislatures were chosen 
with reference to it. Finally Pope, to disarm popular clamor, 
resigned, and the agitation quickly died away. Governor Slaughter 
prudently acted as his own secretary during the residue of his term, 

isibly being a usurper to that extent after all. 

In 1 8 1 7, Mr. Clay, then a member of Congress, returned from 
Washington to find matters sadly "out of joint" in Kentucky 
over the passage of the compensation bill, increasing the pay of mem- 
bers of Congress to fifteen hundred dollars per year. For this unlucky 
measure Mr. Clay had unfortunately voted. His opponents saw, or 
thought they saw, their opportunity to accomplish his defeat. He 
was a candidate for re-election, and, after due consideration, it was 
determined by his adversaries that Mr. Pope should become his com- 
petitor. George D. Prentice, referring to that event, said: "Pope 
was a man of powerful eloquence and great family influence." In 
Prentice's " Life of Clay," there is an account of the canvass. " Mr. 
Pope," remarks the author, " in spite of his eloquence and powerful 
devices, found that he was fast losing ground, and at length, as a last 
expedient, determined to have recourse to a desperate measure." 

The measure in question was nothing more desperate than a chal- 
lenge to his competitor for a joint debate, which was accepted. Pren- 
tice describes the debate somewhat as a tournament between a couple 
of mailed knights, but winds up very much after the figure of the 
prize ring. " He (Pope) fell gradually back until he was pressed against 
the wall, and there his conqueror dealt blow after blow upon his now 
naked and defenseless head " (no doubt losing his helmet in the 
melee) " until the scene became intensely painful." Whether*as the 
result of this polemic pounding, or from other causes, it is not known 
— but, at all events, Pope was defeated. 

This rivalry between Clay and Pope seems not to have ended here 
-but survived for several years. In January, 18 19, Judge George 
Robertson, at the time member of Congress, called on John Quincy 
Adams, then secretary of State under James Monroe, with a letter 
from Pope, and had some conversation on local politics in Kentucky. 
Mr. Adams, in his "Diary," thus alludes to this interview: "That 
State is divided between two parties, with Clay at the head of one of 
them, and Pope of the other. Clay, by the superiority of his talents, 
by a more artful management of popular feelings, and by the chances 



JOHN POPE. 

of good fortune, notwithstanding the more correct moral character oi 
his antagonist, has acquired a great ascendancy over him, and not only 
keeps him depressed in public estimation, but uses every possible- 
means of the most rancorous and malignant enmity to ruin him." 

They (Robertson and Adams) discussed candidates for governor in 
Kentucky, and the probability that Clay, if not himseli a candidate, 
would support Richard M. Johnson, against whom Pope proposed 
Robertson's brother-in-law, McKee. Mention was also made of com- 
binations by Clay in the West in order to secure the presidency on the 
expiration of Monroe's terra — Pope having suggested to Adams the 
great importance of working to secure his own election. Robertson 
said (continued Mr. Adams, referring to the interview), "that it was 
expected there would shortly be a vacancy in the office of district 
attorney in Kentucky, and he wished the appointment might be given 
to Mr. Pope, to whom the office itself was no object, but who would 
value it as a mark of confidence in the administration. I told him I 
had every possible feeling of good will toward Mr. Pope, but having 
made it a principle to avoid recommending to the President any of my 
family relations, if it was desirable that the name of Mr. Pope, who 
had married my wife's sister, should be presented to the President, 
either for the office named or for a foreign mission, I should wish it 
might be through some other channel than me. I had in no instance 
recommended to the President a relative of mine for any office." 

Pope did not have the good fortune to receive the coveted " mark 
of confidence" from Mr. Monroe. 

In 1820 Governor Pope was one of a committee appointed by the 
Legislature to digest a common school system, which reported the 
result of its labors in 1822. Not far from that period, having lost his 
second wife, he again married — this time to the widow of General 
Matthew Walton, the latter having been, it will be remembered, Mr. 
Hardin's competitor for a seat in Congress in 181 5. Mrs. Walton 
resided in Washington county and was possessed of great wealth, and 
thither Governor Pope removed. In 1825 he was elected to the State 
Senate. At this period General Jackson had developed as a leader in 
national politics, and Governor Pope became one of his adherents, 
supporting him for the presidency in 1828. In 1829 he received the 
appointment of governor of Arkansas Territory, which he accepted. 
His friends regarded his action in this respect as one of the capital 
mistakes of his life. To the Pope family in Kentucky General Jack- 
son owed his majority in the State in 1828. The governorship of the 



250 



DEN HARDIN. 



Arkansas Territory was not only deemed an inadequate reward for 
this service, but Pope's friends thought it unbefitting his talents and 
character to accept what they regarded a comparatively paltry and 
barren honor. 

He differed with President Jackson as to the course of the latter 
with regard to the United States Bank, and proffered his advice on the 
subject when the re-charter was vetoed. The response to this well- 
meant but impolitic action was a request for his resignation, which 
was tendered in 1835. ^ n noting this last of his many political mis- 
takes (and a mistake it was for a subordinate to advise such a chief at 
that particular juncture), it seems but just to say that nothing but 
great talents and indomitable will could have overcome the effect of 
his many acts of impolicy. If he had floated with the popular cur- 
rent instead of seeking to stem it, he might have seriously transposed 
in his own favor some of the shining figures in American history. On 
resigning the governorship he arrayed himself with the opponents of 
the administration. Such had been his career up to the time he 
became a candidate for Congress in opposition to Mr. Hardin. 

Governor Pope was five feet ten inches in height, large -bodied, 
heavy-set, broad shoulders slightly rounded, inclined to be fleshy, one 
hundred and eighty or one hundred and ninety pounds in weight ; of 
Mark complexion, regular features, a fine eye, or, as some one expressed 
it, the keenest eye ever in a man's head. One arm had been ampu- 
tated between the shoulder and the elbow in youth, and that stump, 
when he spoke, was in constant motion, not derogating, however, 
from the effect of his oratory or the dignity of his presence. He 
was not a witty man, but sometimes very bitter in speech. He was 
of unquestioned courage, and, though physically disabled, was a dan- 
gerous adversary in personal conflict. A rock was his favorite 
weapon, which he could throw with great force and accuracy. He 
notified Mr. Hardin at the opening of the campaign that he required 
to be treated as a gentleman, and that on failure he would hold him 
to personal accountability. It was said to have been a very quiet and 
exceedingly dull canvass. 

One who personally knew him said that, when in debate and fully 
reused, he was unapproachable. The harder the contest the more 
exhaustless seemed his resources. Dr. Allen, a Virginian residing 
in Shelby county, heard Hardin and Pope debate at Taylorsville dur- 
ing this canvass. He was familiar with the best oratory in Virginia, 
but he said he had never heard anything equal to that debate. Mr. 



JOHN POPE. 



251 



Collins is mistaken in classing Pope with Henry Clay, Governor 
Letcher, and other Kentucky statesmen, "who owed not a little of 
their great personal popularity to the fact that they were skillful playi 
on the fiddle." Governor Pope was physically disqualified for the 
exercise of that accomplishment. 

The congressional district was at that time strongly Whig. Pope's 
hope had been to divide the Whig party and consolidate the friends of 
the administration on himself, the latter having no candidate. His 
recent desertion of Jackson prevented the latter, while his adhesion 
to the Whig party had been so brief as to give him no claim to its 
favor, especially in competition with such a veteran Whig as Hardin. 
But at the next term he was chosen, and re-elected for the two fol- 
lowing terms. 

He was a candidate for a fourth term. For the following incident 
of that campaign the author is indebted to General D. L. Adair, of 
Hawesville : 

" In 1843," sa id General Adair, "William R. Grigsby, James E. Stone, 
and Governor Pope were competing candidates for Congress in the Bards- 
town district — then embracing Hardin, county. The candidates made public 
addresses at the court-house in Elizabethtown on the Inst day of a circuit 
court. A large audience was present, that divided in support between 
Stone and Grigsby. Pope, at the outset, was substantially without following 
— resulting from his frequent change of party affiliation and the popular idea 
that he was unstable. Grigsby and Stone spoke first, and the debate was 
almost finished before Pope arrived. He entered the crowded court-room 
— venerable and very striking in appearance — swinging his armless sleeve. 
His speech was the most remarkable to which I ever listened. In the out- 
set it was halting, his words came with difficulty, his sentences were not 
rounded, his gesticulation was unimpressive, his voice husky, and there was 
a painful impression that he was disabled by age. As he warmed up, how- 
ever, all defects disappeared — his voice grew musical and his speech flowed 
in full and impassioned volume. The youthful fire of intellect transfigured 
the furrowed face and grey locks — and the old man was lost in the orator. 
He defended the integrity of his political course forcibly, earnestly, and elo- 
quently. When, in his peroration, he begged that he should not be deserted 
and turned off in his old age, there was scarce a dry eye in the audient e. 
The effect of his speech was Wonderful. It converted almost ever}' one 
who heard him. At the election that county gave him a large majority, but 
he was, nevertheless, defeated — Stone being chosen." 

This was his last campaign, and the close of his public career, lie- 
died in 1845. 



252 



BEN HARDIN. 



The contest between Hardin and Pope resulted in the choice of the 
former. 

The first session of the Twenty-fourth Congress convened Monday, 
December 7, 1835, Mr. Hardin being present. James K. Polk was 
elected speaker by a vote of one hundred and thirty-two to eighty- 
four for John Bell. The Kentucky delegation, besides Mr. Hardin, 
consisted of Chilton Allan, Richard M. Johnson, and Albert G. 
Hawes, members of the previous session, and the following new 
members: Lynn Boyd, John Calhoon, John Chambers, Richard 
French, William J. Graves, James Harlan, Joseph R. Underwood, 
John White, and Sherrod Williams. 

It is well, perhaps, here to correct a mistake occurring in Collins' 
History of Kentucky,* doubtless repeated from an older publication, 
"The Statesman's Manual," to the effect that William L. May was a 
member of this and the succeeding Congress from Kentucky. Mr. 
May was a member from Illinois for that period. A sketch of John 
Calhoon will be found elsewhere in this work.f 

Lynn Boyd was a native of Tennessee, where he grew to man- 
hood, then emigrating to Kentucky. His first official position was 
that of sheriff. In his twenty-seventh year he entered the Legis- 
lature, representing Graves, Hickman, McCracken, and Calloway 
counties. This was in 1827. The following year he was member for 
Calloway, and in 1831 for Trigg county. He began a long and 
brilliant congressional career the present session, serving altogether 
eighteen years, during four of which he was speaker of the House. He 
had begun life with limited education, and under no other auspices than 
his indomitable will and tireless energy. In his last years he aspired 
to the United States Senate. With a view to this, he sought the 
Democratic nomination for governor in 1859, but, being defeated, he 
was, against his protest, nominated for lieutenant-governor. The 
ticket that year was not unfrequently called the " Kangaroo" ticket. 
He was elected, but died before entering upon the duties of office. 

John Chambers was a native of New Jersey, emigrated to Ken- 
tucky in youth, was thoroughly educated, and came to the bar in 
1800. He served several terms in the State Legislature, for some 
years as Commonwealth's attorney, and entered Congress in 1827, 
serving one term. His next service was in the present Congress. 

Richard French was a native of Kentucky, an excellent lawyer and 
active politician. He was a Democrat when that party was in the 

' History of Kentucky, Vol. I., page 352. 

fChapier \X\ II 



CONGRESSIONAL COLLEAGUES. J 5 3 

minority in the State, and so achieved success under difficulties. He 
had served several terms in the State Legislature, and now first entered 
Congress. 

William Jourdan Graves was a native of Kentucky, born in 1805, 
and, on reaching manhood, studied law, was admitted to practice, 
and soon attained high standing at the bar. After one term of 
service in the State Legislature, he entered Congress the present ses- 
sion. He was re-elected for two succeeding terms. This ended his 
public career, save that he represented the city of Louisville in the 
Legislature in 1843. In February, 1838, Mr. Graves engaged in a 
duel, near Washington, with Jonathan Cilley, a congressman from 
Maine, in which the latter was slain. This event became the subject 
of much heated controversy, and proved unfortunate for Graves' 
career. "Depend upon it," says Crittenden, in a letter from Wash- 
ington, just after the duel, to Leslie Combs, at Frankfort, "depend 
upon it, he is a pure-minded, noble-hearted fellow, and as brave as 
Julius Caesar. He ought to have your sympathies. The Kentucky 
blood here is all warm toward Graves." Hut, as the letter indicates, 
the tide was against the successful duelist. 

James Harlan was born in Mercer county, the first year of the 
century. Coming to the bar in 1823, he became prosecuting attorney 
in 1829, and first entered Congress the present session. He was long 
an active and distinguished member of the bar of the State, held 
many important posts, and died in 1 863. :|: 

Joseph R. Underwood had served in the State Legislature, and 
had been otherwise active in State politics. He was appointed a 
judge of the Court of Appeals, and performed the duties of that por- 
tion for some years, and until he resigned to enter the Twenty-fourth 
Congress. He was an accomplished lawyer, of sterling integrity, and 
sound sense. The curious reader will find an excellent sketch of the 
principal events in his life in Mr. Collins' valuable history, f 

John White was elected to Congress the present term for the first 
time, and was also chosen for the four terms succeeding, one of which 
he was speaker. Said John Quincy Adams, "White is a man of fine 
talents and an able debater, but his manner is so vehement and his 
articulation so rapid that it becomes altogether indistinct. IK- repeats 
the word sir every fifth word, and his discourse is one continued 
stream, without division into paragraphs W construction of sentem 



* Mr. Harlan was the father of Hon. Janice Harlan, a distinguished m.-mber of the Louisville bar, 
and of Hon. John M. Harlan, associate justice of the Supreme Court of the United States. 
t Collins' History of Kentucky, Vol. II., page 7^9. 



254 



BEN HARDIN. 



At the end of his congressional service (1845) he became circuit judge, 
and the same year committed suicide at his home in Richmond. 

Sherrod Williams had served several years in the Legislature, and 
now began his congressional career of three terms. Says one who 
knew him: "He was social, kind-hearted, and of fine address and 
personal appearance,'' all of which was marred by the "too frequent 
and intemperate use of alcohol."* 

Mr. Hardin had a number of distinguished colleagues from other 

ites the present session. Messrs. Pierce, J. Q. Adams, Cambrel- 
eng, Mason, Wise, Corwin, Polk, Bell, and Peyton were again returned. 
Two other familiar names are found on the roll of congressmen for 
the first time, Caleb Cushing, of Massachusetts, and Bellamy Storer, 
of Ohio. 

On Monday, the seventh day of the session, the speaker announced 
the standing committees. Messrs. Johnson and Hawes retained their 
respective chairmanships of the former session, of Military Affairs and 
Post-office Department. Mr. Hardin was associated with Mr. Pierce 
and Mr. Peyton on the committee en the Judiciary. He was also a 
member of a select committee on the northern boundary of Ohio, of 
which Mr. Adams was chairman. Other Kentucky congressmen occu- 
pied subordinate positions in the arrangement of committees. 

During the session Mr. Hardin was, as usual, an active member, 
taking part in all important debates. A great fire in New York city, 
involving a loss of many millions of dollars, was the pretext for a bill to 
make loans to the suffering merchants of that city, which Mr. Hardin 
opposed. He took part in the debate relating to the contested election 
of Graham and Newland, of North Carolina. Among other things 
he opposed a contestant being allowed counsel to represent him on 
the floor of the House. He favored paying the expenses of an unsuc- 
cessful contest where made in good faith. He was in favor of civiliz- 
ing the Indians, but if troops were sent to punish them, he regarded 
the militia better and cheaper than regulars for that purpose. Con- 
gress at that period began extending its bounty to railroads, a policy 
Mr. Hardin opposed. The Pensacola and Perdido railroad and canal 
company sought a grant of the right of way through public lands for 
several hundred miles sixty yards wide. Mr. Hardin objected to this 
width, and moved an amendment reducing it to eighty feet, though he 
thought twenty feet quite wide enough. 

He was one of a committee to report on abolition. Mr. Pinckney 
(of South Carolina), the chairman thereof, offered an extended report. 

* Allen's History of Kentucky, page 274. 



RELATIONS WITH FRANCE. J :; 5 

"Believing from the first," said Mr. Hardin, "that he had been 

placed on this committee to make up the notable number of nine, he- 
had declined to attend its meetings or take part in its proceediiv 
There was one part of the report from which he entirely dissented. 
He understood it to be set forth that the abolitionists were few and 
their efforts insignificant. In this he did not concur and must enter 
his protest against it. He believed there were large numbers of abo- 
litionists, and that the purpose of this report was to suppress the fact." 
An extended discussion followed, in which many southern members 
took part, by whom Mr. Pinckney and the report made by him were 
condemned in unmeasured terms. These were the distant mutterings 
of the storm that burst forth in all its fury a quarter of a century later. 
The most interesting debate of the session arose concerning the 
relations between the American Government and Trance. During the 
time of Napoleon Bonaparte he had undertaken, by certain decrees, to 
forbid maritime intercourse on the part of other nations with Great 
Britain, with which he was then at war. For violation of these 
decrees American vessels were seized by France and confiscated. For 
losses thus sustained the American Government demanded reparation, 
but not until the year 1831 was a settlement reached. In that year a 
treaty was concluded between King Louis Philippe and the United 
States, whereby France agreed to pay an indemnity of twenty-five 
million francs, in six annual installments. These installments, it so 
happened, were not paid at maturity. 

A bill of exchange, drawn by the secretary of the treasury on the 
French Government for one of them, had been protested for non-pay- 
ment. The explanation made by the French king was that the Cham- 
bers had failed to make the necessary appropriations, but he hoped that 
after some delay necessary provisions would be made. President Jack- 
son was an impatient creditor. In his messages he made frequent and 
lengthy allusions to the subject. To the second session of the Twenty- 
third Congress he had submitted whether further action of the French 
Chambers should be awaited, or whether Congress should a. 'opt 
such provisional measures as it might deem necessary and best adapted 
to protect the rights and maintain the honor of the country. ' 1 1 
relations with France were the subject of long and heated discussion 
by Congress. The tenor of this debate may be judged by a question 
of Albert G. Hawes, of Kentucky, in the House. He asked "if th 
was already a French and American party in the House ? If so, it was 
high time the people of Kentucky knew it; and he should feel it his 



256 BEN HARDIN. 

duty to go home and acquaint his constituents of the fact. They 
were accustomed to rally under the flag of their country." John 
Quincy Adams offered and spoke for the following resolution: 
"Resolved, that in the opinion of this House the treaty of the 4th of 
July, 1 83 1, should be maintained and its execution insisted on at alt 
hazards." This resolution was opposed by Mr. Hardin and others 
adverse to the administration. They regarded the resolution as an 
insulting menace to France, and imperiling the peace of the two 
countries. 

Mr. Hardin spoke on the subject at great length : 

•• He entered into an examination of the foundations of these claims under 
the trcatv. They had arisen from spoliations made by Napoleon Bonaparte, 
who had always refused to make any indemnity. Both Louis XVIII. and 
Charles X. had also refused to enter into it, and it was only on the elevation 
of Louis Philippe to the throne of France that these twenty-five millions had 
been acknowledged. To this king we owed the treaty, and he had omitted 
nothing within his power to secure its passage. Mr. Hardin also contended 
that the French Chambers, as the popular branch, had the same right to reject 
a treaty involving an appropriation as the House of Representatives in Con- 
gress had. Besides, the French had the power of making their own laws 
and their own constitution, and they had the right of putting their interpreta- 
tion upon them. With these views, he thought it cowardly, he thought it 
dastardly, for this nation to threaten war. He could see no treachery, no 
backsliding in the king or his ministers. That king was surrounded with dif- 
ficulties, and had made himself responsible for injuries done twenty-five years 
ago. What should we go to war for? A paltry sum of five millions. A war 
would cost us in one year not less than ten or fifteen millions of dollars, and 
would sweep from the ocean at least fifty millions of our commerce. And 
upon whom would the expense fall? Upon the hard-working, industrious 
farmer almost exclusively. Besides, Mr. Hardin had no feeling for a French 
war. He remembered when we had only two millions and a half of people, 
when we were overwhelmed with debt, and our little band of hardy patriots 
without arms or clothing, that France shed her blood and expended her treas- 
ure lor us. Should we forget this? She stood by us when all the nations of 
the earth stood aloof from us." 

Subsequently Mr. Adams suffered his resolution to be amended 
by striking out the last words, "at all hazards," and thereupon it was 
unanimously adopted. 

This occurred the last day but one of the second session of the 
preceding Congress. On the last day the fortification bill was amended 
in the House, setting apart three millions of dollars, to be expended by 



MR. ADAMS RESOLUTION. 



-'57 



the President in defense of the country, should necessity arise, before 
the next meeting of Congress. This amendment was not agreed to in 
the Senate, and a committee of conference was thereupon appointed 
by the two Houses. That committee decided that the House should 
recede from its amendment, and this fact was reported to the Senate 
during the evening, but not to the House until after midnight, so 
nothing was done and no appropriation for fortifications made. 

At the present session, Mr. Adams introduced a resolution of 
inquiry as to the cause of the failure of the appropriation for fortifica- 
tions at the previous session. He advocated the resolution in an 
impassioned speech. He insisted that the Senate, not the House, was 
responsible. He ridiculed some of the reasons given in the Senate 
for voting against the three million appropriation. 

" One of them was that the House inserted the appropriation in the bill 
without a recommendation from the executive. This, sir," said he, " was 
the great basis upon which was founded that burst of patriotic indignation 
and eloquence which would rather have seen an enemy ' battering down the 
walls of this capital' than have agreed to this appropriation for the defense 
of the country. Sir, only one step more was necessary, and an easy step it 
was, for men who would refuse an appropriation, even in the terms and 
under the specifications in which that was proposed, if the enemy were at 
the gates of the capital, I say, there was only one step more, and that a nat- 
ural and easy one, to join the enemy in battering down these walls. 

" At this stage of Mr. Adams' remarks (says the reporter), there was a 
loud burst of applause from every part of the House. The speaker called upon 
the House to aid him in the preservation of order, and remarked that such 
an innovation of the rules and dignity of the House had not been known tor 
the last ten years." 

Mr. Hardin arose to say something during the speech of Mr. 
Adams, but members called loudly for order and Speaker Polk decided 
him out of order. " Oh ! very well, Mr. Speaker, but I will be heard 
some time yet," rejoined Mr. Hardin. 

A few days afterward the House resumed the consideration of Mr. 
Adams' resolution, or, as it was styled, " last year's fortification bill." 
and Mr. Hardin obtained the floor. The following extracts from his 
speech happily illustrate some of the peculiar characteristics of his 
oratory, and at the same time furnish a vivid portraiture of the politics 
and politicians of that day: 

"Mr. Speaker, it was either my good or ill fortune (for, at this time, I 
know not in whieh point of view to consider it) to obtain the floor last even- 
ing. To have consulted my own feelings and wishes on the subject. I ought 

17 



258 



BEN HARDIN. 



instantly to have proceeded with what I had to say. It was late, and, to 
at i ommodate some gentlemen around me, I moved for the House to adjourn, 
which motion was agreed to. Gentlemen in more remote parts of the hall 
voted for it, as a favor accorded to me. I owe and now tender to them my 
mosl profound acknowledgments for their kindness manifested on that occa- 
sion. 

•• Sir, the time, manner of presenting, and the subject-matter of the reso- 
lution now under consideration seem to be a phenomenon in legislation. To 
; v iew our proceedings for some meetings past is neither pleasant nor instruct- 
ive. They contain nothing to feed our pride, flatter our vanity, or redound 

the honor of this Mouse. There is something in them so strange, so unac- 
countable to an ordinary observer, nevertheless so much in character with 

ne of the leading members of the administration party in this House, that 
I hope to be indulged until I recapitulate them. 

•• The appropriation bills have been reported to this House, and, put them 
all together, amount to something like ten millions more than for the same 
objects was appropriated last year, and near that amount more than an aver- 
yrear since the commencement of the administration of General Jackson. 
This excess may he considered by this House as a war measure, and will be 
so viewed by the nation and the world. 

These bills were, by an order of the House, at the instance of the chair- 
in m of the committee of ways and means, made the special order of each 
day until they are disposed of. This first bill taken up was that appropriat- 
ing money for the navy; the House went into committee of the whole on 
the state of the Union for consideration of that bill. A war speech was 
made by the chairman of the committee of ways and means (Mr. Cam- 
breleng), in his usual bustling, swelling manner. Several other speeches 
followed, and, toward evening, the gentleman from North Carolina (Mr. 

num) commenced a warm, animated, and eloquent speech in favor of the 
bill, in a high-tone war spirit. The speech was about half finished, when 
the gentleman gave place for a motion for the committee to rise, as it was 
late in the evening. Next day, the whole House came prepared to enter 
with spirit into the discussion of our relations with France, and all the 
measures which were about to be taken connected therewith. The party of 
the little Kinderhook hero (Mr. Van Buren) seemed brimful of fight. We 
had been denounced, the evening before, by the gentleman from North Car- 
olina, as the French party, which he declared now existed in this nation. 
The imputation we considered as unmerited, and intended to vindicate our- 

Ives from so foul an accusation. Never did this House assemble in a 
higher state of excitement than was manifested or* the next day. It was 
expe< t'd that the debate would progress with increased animation, and that 
many a parliamentary lance would be hurled, broken, and shivered into 
pieces. The galleries were crowded at an early hour. When the time 



SPEECH ON RELATIONS WITH FRANCE. 



2 59 



arrived for the House again to go into committee of the whole on the state 
of the Union on the navy bill, the gentleman from New York (Mr. Cam- 
breleng) moved to dispense with the orders of the day, to take up the bill to 
relieve the sufferers by fire in New York The motion prevailed, the orders 
of the day were dispensed with, the navy bill was laid down, and the bill t<> 
relieve the sufferers by fire in New York taken up. Some progress was made 
in that bill, but, before it was finished, nay, hardly commenced, the House 
adjourned. 

"The next day, was the House permitted to begin where it had stopped ? 
No; what then was the course of business? That very same gentleman 
from New York (Mr. Cambreleng), who is the leader of the Jackson-Van 
Buren party in this House, or, if not the leader, is put in a position by the 
speaker to lead, got up, addressed the House, and then read or alluded to a 
paragraph in a newspaper, which he said had attacked him personally ; as 
if this House had anything to do with the newspaper controversies of the 
honorable gentleman. As usual, he pompously commenced a vindication 
of himself; but, before he had uttered more than one or two senteni 
wound up by saying that the source from which the alleged slander came 
was beneath his notice and unworthy of him. I beg the House not to tor- 
get that, at the same time, he intimated that the subject referred to in the 
paper would be brought before the House in another shape, by the gentleman 
from Massachusetts (Mr. Adams), who instantly took the floor with the res- 
olution now under debate in his hand, already cut out and made up to order. 
The rules of the House were again dispensed with, the gentleman from New 
York voting for it, and the present resolution was offered. I will not 
that there was a secret understanding between those two gentlemen that the 
resolution should be brought before the House in this very extraordinary 
and unprecedented manner. The reason I will not aver that to be the t 
is, because I do not know it; yet, there seemed to me to be something inex- 
plicable in the matter, if there was no such understanding. Why did he- 
rise, allude to the paragraph, and stop short, without proceeding with his 
vindication? He was too well acquainted with the rules of this House not 
to know that he was out of order. 

" I have asked, and again repeat it. why. after he had commenced his 
defense, did he stop? and why did he intimate that the gentleman from 
Massachusetts would bring that subject before the House in another form? 
They must have conferred together, and the whole was a maneuver to ena- 
ble the gentleman from Massachusetts to exhibit his resolution; which I 
consider an indictment, with one count against the members in this House 
who voted against the three million appropriation last session, another count 
against the majority in the Senate; but these two counts are only nominal ; 
the real intent and meaning of the whole is to reach two of the honorable 
senators (Messrs. White and Webster), who are now before the people as 



2 6o BEN HARDIN. 

candidates for the presidency. It looks like a Van Buren trick; the hand of 
the magician is surely in this whole matter. If the gentleman from Massa- 
chusetts is capable of blushing or feeling one sensation of shame, that blush 
or sensation ought to be exhibited upon the present occasion. I call upon 
him to review his past life, the high and dignified offices he has filled, during 
ice of fifty years, with so much credit to himself and honor to the nation ; 
and now but to behold his present fallen condition; the instrument of a vile 
intrieue. Self-debasement and degradation is a fatality which frequently 
awaits the inordinate ambition of an old man — that ambition which outlives 
his faculties. 

•• Mr. Speaker, I hope the House will pardon me for this short digression. 
I will proceed with the history of this resolution and its progress in the House 
up to the present time. The gentleman from Massachusetts; in support of it, 
addressed the House for nearly three hours in a most elaborate speech, alike 
famous for its length, violence, and vituperation of his former political friends, 
filled to overflowing with the bitterest invective. Some of his remarks I 
intend to notice hereafter. He was followed by the honorable gentleman 
from Virginia (Mr. Wise), who addressed the House at length on the oppo- 
site side, and who in his speech exhibited great industry, research, and tal- 
ents. But the ability he displayed, although very great, did not so much 
attract my admiration as the bold and manly bearing in delivering his senti- 
ments. He forcibly reminded me of what that stern republican Roman said, 
that 

" ' A day, an hour of virtuous liberty 
Is worth a whole eternity in bondage.' 

"When the gentleman from Virginia resumed his seat, the honorable 
chairman of the committee of ways and means (Mr. Cambreleng), with 
great pomp and parade, took the floor and announced what he intended to 
do when he should address the House. He said it was too late to proceed 
that evening, but, before he moved an adjournment, with great arrogance 
declared he would not reply to the gentleman from Virginia; that he intended 
to encounter a champion more worthy of his steel, alluding to Mr. Webster, 
of the Senate. I admired his courage, and felicitated myself that my eyes, 
at least once in my life, would be gratified by a sight of the battle of the 
giants. There was something to command my admiration in his high 
resolves. It was a laudable ambition, even if he perished in the conflict. 
1 love to see men matched fairly. Let footmen fight with footmen, squire 
with squire, knight couch the lance and spur the fiery steed against knight. 
Pingal never left his rock and mixed in the strife of heroes until Lathmon 
was in the field. 

•• When the gentleman took the floor yesterday, I expected efforts com- 
mensurate with the undertaking: I listened to hear Jupiter thundering from 
Olympus' cloudy tops, or, if not the thunder of Jove, at least the music of the 



SPEECH ON RELATIONS WITH FRANCE. j6l 

spheres. But was there ever a man so disappointed ! Instead of the grand- 
eur, magnificence, and sublimity of thunder rolling along and shaking the 

earth from pole to pole, my ears were grated with the miserable sound of a 
wretched performer on a Jew's harp! [f an enlightened stranger were to 
visit this city during the sitting of Congress, and .mend the debates in the 
Senate and here, how this House would suffer in comparison ! If he should 
chance to hear the chairman of the committee on finance in the Senate 
(Mr. Webster) developing, in his usual lucid manner, complicated questions 
of finance, and unfolding the almost exhaustless, although somewhat hidden, 
resources of this nation; and, after that, come into this hall and hear the 
chairman of the committee of ways and means on the same subject ; whether 
the efforts of the great moneyed officer of this House would most excite his 
laughter or contempt, I can not tell; the sublime and ludicrous are so nearly 
allied. His feelings would be not unlike those of an amateur of the great 
and awful workings of nature, who had just been a spectator of Vesuvius or 
./Etna in the appalling grandeur of a tremendous eruption, and then turning 
on the plain below, and seeing a mole or ant hill emitting a pale smoke, and 
occasionally a feeble and sickly blaze. 

" Mr. Speaker, I have been a member of this House or the Legislature 
of Kentucky for nearly twenty-five years. I do not profess to have an inti- 
mate acquaintance with the rules and regulations which govern, or, rather, 
ought to govern, parliamentary bodies; yet I do profess to know enough of 
the order of proceedings as will enable me to do, and understand how to 
transact, the business confided to me, either by my constituents or this 
House. I never made more of the rules my study than was needful lor the 
doing of business. My ambitious aspirations have never been dircrted 
toward the speaker's chair. I can not give in to the modern doctrine, that, 
if the force of party, or the desire to propitiate the White House, should take 
a man from among us who is not above the mediocrity of this House, and 
make him speaker, he thereby becomes one of the wise men of this land; it 
is the man who is to do honor to the chair, and not the chair to do honor to 
the man ; if he does not fill it, his littleness, by his elevation, only becomes 
more visible and striking. If the same man. when in the chair, should select 
a man below mediocrity in this House, and put him at the head of the most 
important committee, I am equally disinclined to believe that he i hereby 
becomes 'a very Daniel of a man.' Sir, since Elijah went to Heaven in a 
chariot of fire, and cast his mantle on Elisha, and he thereby became a 
prophet, God has not vouchsafed for any other man on this earth to be thu: 
gifted. 

" Mr. Speaker, I declare to the House that such a resolution as the ] 'res- 
ent I never before saw. Does it propose anything for the action of this 
House? It does not. We are to raise a committee in this House to impure 
and report why a certain bill, which was before Congress at the last session. 



262 BEN HARDIN. 

did not pass. Let the committee report as it may, no action of this House 
can be based thereon or grow out of it. Can we impeach the members of 
the Senate, or of the last House of Representatives, who voted against the 
three million appropriation ? Every man in this House knows we can not. 

"One of the main objects of this resolution is to raise the committee. 
Will that committee examine witnesses? No. The gentleman from Massa- 
chusetts will draught a report, based upon his distorted view of the transac- 
tion, for well 1 know the part he took in it last session. It will be filled 
with bitter denunciations of his former political friends and associates, to 
conciliate the opposite party, and make his peace at the palace. I have 
no doubt the report will not exhibit any one fact exactly as it took place. 
To tell the truth, the whole truth, and nothing but the truth is far from the 
object of the gentlemen concerned in this matter. A war is to be made on 
the senators to cheapen and lessen their standing with the people of the 
United States. Messrs. Webster and White are to be assailed without 
mercy in the report, and food furnished for all the administration presses in 
the Union, next summer, to abuse those who voted against the appropriation 
in either House. I ask, does it become the dignity of this august assembly, 
the wisest and freest on earth, to degrade itself for such a vile purpose, the 
inglorious one of becoming panderers to collect and embody slander for the 
ofncediolders and office hunters, some of whom are now feeding, and others 
expect shortly to feed, upon the 'spoils' of this nation, as if we were a 
conquered enemy, and who are the only self-styled, self-created democracy 
of the country, a word justly dear to a Republican, and only used in these 
degenerate days, by designing knaves, to flatter and deceive the people ? 

" I boldly and fearlessly pronounce the resolution to be unparliamentary, 
unprecedented, and disgraceful to those concerned in it. No man can mis- 
understand its object. It is an inquisition of entitling for Van Buren. If, 
Mr. Speaker, I had no other reasons than those I have just this moment 
assigned, 1 would vote against the resolution. If the gentleman from Massa- 
chusetts (Mr. Adams) wishes to cut a somersault, let him do it as a clown in 
the pit. Do not give him a spring-plank to leap from. I want to see him 
turn a somersault as a ground, not a lofty, tumbler. He is not unaccustomed 
to these things. He has frequently done it before, without the aid of a com- 
mittee, and let him do it again. 

****** 

••The gentleman from Massachusetts attempts to throw the loss of the bill 
upon those who believed the House to be constitutionally dissolved at twelve 
o'clock i. m. on the 3d day of March last. Although I then entertained 
that opinion and acted on it, which opinion I have not since changed, yet, 
even if it were wrong, the gentleman ought to recollect that that error of 
opinion dors not exculpate the gentleman from New York (Mr. Cambreleng). 
I ask the gentleman (Mr. Adams) if it would not be wise and prudent in him 



SPEECH ON RELATIONS WITH FRANCE 



263 



at least to see who is the most affected by entertaining that opinion? [f 
there be error in it, will it fall heaviest upon your old and deserted politii 
friends, or on the new allies, whom you are now courting with such marked 
attention and assiduity, and who, after they use you, will not give you your 
expected and hoped-for reward; no, not even the thirty pieo silver? 

General Jackson entertained that opinion and acted on it. Mr. Van Buren 
entertained that opinion, as a matter of course; by instinct, I suppose 

* * * * * * * * * 

"This argument of the gentleman from Massachusetts is a two-edged 
sword, and, when wielded by him, cuts ten of his new associates for one of 
his old friends. I, however, do not censure the gentleman for entertaining 
the opinion that the President and Congress can each hold their offices, one 
after the four years and the other after the two years expire. How long after 
the time shall expire they shall continue in office he does not state; at least 
long enough, I suppose, to do what the}' desire, and to finish what they have 
on hand. This question revives his ancient recollections and reminiscences. 
I once heard of a President who, between midnight and day. and that, too, 
after his four years had expired, made a batch of judges, to reward some of 
the high-toned Federalists of the old school for past services.* 

'• The second member of the resolution, that we would insist on its exe- 
cution, means no more than this : That we hold the highest and most solemn 
obligation on France that a nation could give, and that we would insist on 
its fulfilment. But did it point out how and in what manner we intended to 
insist? Did it say we intended to resort to arms, the last argument of 
nations? 1 answer, no. We carefully forebore to say, or even to inti- 
mate, what we intended to do. Our intention was to regulate our conduct 
by the subsequent action of the French. We, in truth and fact, designed 
doing nothing until the French Chambers should have an opportunity to act 
on the bill appropriating the twenty-five million of francs. We are desirous 
to wait, and suspend action until we should see what a sense of justice would 
do with the French people, or what the feelings of shame would do when the 
reprobation of the nations of the civilized world was pointed toward them for 
a breach of national faith in not fulfilling the treaty stipulations on their part. 
I, for one, never thought of such an appropriation being asked for and of this 
demand being based on the resolution of the House. 1 believe it is an after- 
thought of the gentleman from Massachusetts, and that he himself did not 
then suppose that such an appropriation became necessary in consequence of 
the adoption of the resolution. 

"Connected with the observations of the gentleman just noticed, he 
made another, on which I feel bound to animadvert. It was to this import: 
That for three days a number of members spoke against the resolution, and 
then, in a crouching spirit of pusillanimity, turned around and voted for it. 

* John Adams is referred to. 



264 BEN HARDIN. 

not daring to meet the just indignation and reprobation of their constituents 
at home. I was (me of those members who spoke on that occasion against 
a resolution, and then voted for that which passed; but I deny that that 
debated for three days was the one which passed. The one that was adopted 
and passed by the House was worded to meet the views of all the gentle- 
men, because, upon a great question of national difficulty with a foreign 
nation, and more particularly with a nation of tremendous power, nothing 
could be more desirable than unanimity. The resolution against which the 
speeches were made contained, among other things, an expression that we 
would insist on the treaty 'at all hazards.' That expression we thought 
unbecoming the dignity of this nation. To say we insist on the treaty was 
enough, and all we ought to have said. Let the rest and residue be under- 
stood, which is no less nor more than this : That we knew our rights, and 
would, in a becoming spirit of moderation and true dignity, maintain them ; 
that the pride of the people should not be wounded and humbled in the 
affair, and that the honor of the nation should come out of the contest, 
be its results whatever it might, unstained and untarnished. Did it become 
us to vapor, like a bully, by using the words, ' at all hazards ? ' It is no 
certain indication that a man is going to make a desperate battle in defense 
of his rights and honor because he gasconades, and deals out menaces and 
blows in the empty air, before he begins to fight. I have ever considered 
it as the certain sign of a coward, that fear is his ruling passion, and that he 
either wants to intimidate his adversary or goad himself up to the fighting 
point by his rage and fury. The word, 'at all hazards,' as little becomes 

- it suited the occasion. To whom was it addressed? To the most sensi- 
tive, powerful, gallant, and chivalrous nation upon the earth. We wanted 
France to do us justice. We did not want war, although we did not fear it. 
The Americans know not fear. The bullying expression of 'at all haz- 
ards' would have produced an effect directly oppcsite to what we desired. 

" I well recollect what took place in those days, ever memorable for the 
debates which took place, and not less memorable for the part the gentleman 
from Massachusetts played on that occasion, and certainly no expression, 
when applied to his conduct during that time, suits as well as the word play. 
II would speak on one day on one side of the question, as the House under- 
stood him, and the next day explain it away and advance a contrary doctrine. 
ilternated in this manner some two or three times. I had the honor of 
addressing the House after his last speech. I commenced my remarks by 
saying that the law in relation to wills always considered the last will as con- 
trolling or revoking all other wills made on the same subject; or if there was 
but one will, with contradictory provisions, the last clause controlled the pre- 
vious one; and, with that rule as my guide on the present occasion, I should 
consider the speech which the honorable gentleman from Massachusetts had 
just made as his last will and testament of and concerning our French rela- 



SPEECH ON RELATIONS WITH FRANCJ , 2 >; 

tions. Mr, Archer, of Virginia, immediately suggested that the rule I had ■ 
laid down was correct, but one explanation ought to he given ; that sva>. ih.it 
the testator when he made his last will was of sound mind and disposing 
memory; and when that rule was applied, he doubted whether the gentle- 
man had made his will at all. 

* * * * * # * * 

"Mr. Speaker, there are momentous and mighty considerations which 
ought to induce Congress to be watchful over the purse of the nation. R. , 
ollect the President, by the Constitution, already has the sword of the nation. 
Give him the purse also, and we are an undone people. 1 do not speak with 
reference more to the present President than to any other who maj come 
after him. The power and patronage of the President are enormous and 
alarming to all lovers of civil liberty. The executive of this republic has 
more real and substantial power this day than any crowned head in Europe. 
Satiated with the enjoyment of his power, he is about to retire; and. to show 
his contempt for the American people, he is about to put one of his minions 
into his office as his successor, whose only merit is in the servile boast that 
'it was glory enough to have served under such a chief.' 

"What way is left to us by the Constitution to diminish, check, and con- 
trol it? No way but one, that is, not to give one dollar of the people's 
money more than is necessary to carry on the government, and every dollar 
Ave give to see how and in what manner it shall be expended, and to guard 
with great vigilance that it shall be expended in no other way. 

"The government of Great Britain is a monarchy; but the king of that 
great and mighty nation has not the tenth part of the real power that the 
President of the United States has, and which he exercises in its fullest plen- 
titude, day after day. In that country the people govern and control every- 
thing; here, the will of General Jackson is almost omnipotent. There the 
people can say to their king, emancipate your Catholic subjects, and their 
chains burst from around them. They can say what law they want passed, 
and he is obliged to sign the bill ; no veto there; he dare not exercise it. at 
the peril of his head. They can bid him make peace, if the nations be at 
war, and peace he must make. They can tell him to dismiss his ministry, 
and they must go out of office. The power of the people, the Duke of 
Wellington, the favorite of the king, the pride of the nobility, and the con- 
pueror in a hundred battles, has experienced upon several occasions. 

" You will ask, Mr. Speaker, how it is the voice of the people reaches the 
king in his magnificent throne, and makes the public tremble at its footstool ? 
I answer, by the simplest principles imaginable, which is ingrafted in their 
government; that is, to withhold the appropriation bills until the king and 
ministry do as they order to be done. I tell to every man in this Holl- 
and to every man in this nation, this solemn truth : Either to abridge the 
power of the President by altering the Constitution, or control the President 



BEN HARDIN. 

by the appropriation bills — refuse him the money, and he will be as powerless 
as Sampson was after his hair was cut off. The vile creatures who now 
minister to his power go in for ' the spoils.' Cato the elder, in the Roman 
Senate, for a number of years, regardless on what subject he made a speech, 
i on hided them all alike — that 'Carthage must be destroyed;' so the members 
on this lloor ought to conclude every speech with these words, until the 
object is effected — that the President's power has increased, is increasing, 
and ought to be diminished 

********* 

"The three million amendment must therefore be considered as a war 
measure; not positive, absolute, and certain, but left to the President for him 
l( i| it or not, at his pleasure. War preparations and war itself belong alone 
to < longress — to adopt the one, and make proclamation of the other. In no 
event should the President be permitted to hold in the palm of one hand 
war. and in the other the olive-branch of peace. The people are to do all 
the fighting, and they alone should determine on war. Of all the men on 
this earth, a military man is the last to be trusted with this power. His char- 
acter has been made by war. He has studied it as a science, followed it as 
a profession, and considers it necessary to his popularity and glory. 

" It was impolitic to confide such a power in the hands of General Jack- 
son. The fitness of every man for the trust about to be confided to him 
ought to be considered and weighed well before the act is done. What I 
might be willing to confide to Jefferson, were he President, I might be unwil- 
ling to trust to Jackson. I might be willing to leave peace or war to Jeffer- 
son, and unwilling to commit the same power to Jackson. So, on the other 
hand, 1 would confide to Jackson the command of an army, when I would 
not to Jefferson. But, in truth and fact, as I have said before, I would hot 
leave the alternative of peace or war to any President. Nevertheless, this 
House proposed, by the amendment, to commit to General Jackson that del- 
icate trust and duty, which, of all men living, he was the worst qualified 
to discharge. Had the amendment passed, instead of being at peace with 
I rim e, as we now are — and there is every hope and prospect of its contin- 
uance — we should this day, no doubt, have been in the midst of a wide- 
spreading and bloody war. To decide impartially upon the conduct of those 
who voted against the appropriation last session (for the gentleman from Mas- 
- u husetts has arraigned us all at the great bar of public opinion), let us see 
and examine the position of this Government, and that of France, in their 
relations with each other, at the time the appropriation was asked for. 

• During the imperial government of Bonaparte, aggressions and spoli- 
ations, to a great extent, were committed by the subjects of the emperor 
upon the private property of our merchants on the high seas. The amount 
of injury was variously estimated by the two governments. These injuries 
were inflicted near thirty years ago. Satisfaction was demanded by this Gov- 



SPEECH ON RELATIONS WITH FRANCE. 267 

ernment of Bonaparte, which was denied. After his dethronement, and the 
restoration of the Bourbons, a like demand for reparation was made by this 
Government of Louis XVIII. He refused to make satisfa< tion. Afti r his 
death, and on the accession of Charles X. to the throne, indemnity was 
demanded of him, which he delayed and failed to render. When Louis 
Philippe was made king, in 1830, indemnities were demanded of him by our 
Government. He immediately opened a negotiation on the subje< 1. and 
ultimately agreed to pay twenty-five millions of francs, out of which were to 
be deducted one million five hundred thousand, which the United States 
owed a subject to France, leaving four million seven hundred thousand dol- 
lars to be paid by the government of the French to die citizens of the I'nited 
States, that being twenty-three million five hundred thousand francs. This 
money could not be paid by the king of the French until the Chambers should 
appropriate it. The constitution of France is exactly like our own on this 
subject, and I have no doubt Lafayette, who was concerned in making it, 
had our Constitution in view. 

" The king and his ministers can make treaties, and stipulate for the pay- 
ment of money; but it is the constitutional right of the Chamber of Depu- 
ties alone to vote the appropriation or not, as they please. So with our 
Government, the President and Senate can make treaties and stipulate for 
the payment of money, but Congress alone can appropriate it. 

" I have remarked, Mr. Speaker, that the refusal to appropriate the 
money at the last session has, I do verily believe, saved this nation from the 
horrors of war at this moment. France might have considered it a war 
measure pointed at her, and have immediately struck the blow; as, by the 
usages of nations, she would have had the right to do. When two nations 
have difficulties and collisions with each other, in this situation, if either 
commences preparations for war, the other has the right to commence hostil- 
ities immediately. This principle has been considered the settled law of 
nations in Europe for one hundred and fifty years past. 

"The probability is, that the French, who have never refused to accept a 
challenge, would in this light have considered our law, had it passed, and 
instantly made a dash at our extended, widespreading, and immense ci unmerce 
with her whole navy. On the other hand, when an extraordinary number of 
our ships should have been put in commission, manned, officered, and sent to 
sea. flushed with the spirit of enterprise and panting for war. would there 
not have been great danger that some of our hotspurs might have brought it 
on by firing into a French vessel? And one gun fired on either side upon 
the ships of the other, in the irritated state of feeling, would have lighted 
the flames of war, which would have been seen and felt all over the world. 

"I think, Mr. Speaker, that instead of standing as criminals at the bar 
of public opinion, and the gentleman from Massachusetts prosecuting those 



2 68 BEN ' HARDIN. 

who voted against the measure, they are entitled to the thanks of the nation 
and the gratitude of the humane, philanthropic, and religious part of the 
world. The brave man and the soldier equally look on war as an evil, and 
the scourge of mankind. 

•• I have, Mr. Speaker, taken but one view of the impolicy of the meas- 
ure - there are other and more important considerations connected with this 
subject, to which I now intend to call the attention of the House. These 
considerations are applicable as well to our relations with France last session 
as the present, and as we have now on our tables bills containing avowedly 
war appropriations to the amount of ten or fifteen millions, I shall, in my 
vindication of our conduct last session, occasionally refer to the present war 
measures now in agitation, and, in doing that, I will only be following the 
example set me by others. By the postponement last session of all war 
preparations, the bill to pay the five millions of dollars passed into a law by 
the law-making power of France. The payment of the money is withheld 
until some explanation by the President, that, in his message to Congress 
last session, he did not intend to impeach the integrity of the French 
nation, or question the honor of the king. The President says, individ- 
uallv, he did not; but, like a technical lawyer, specially demurs, and says: 
' What I said was in my message to Congress ; it was not addressed to you, 
and you have no right to notice it ; it is a departure in pleading." And thus 
the matter now stands, alike reproachful to both parties. What an extraor- 
dinary spectacle is presented for the world to look upon and marvel at. 
Two of the most powerful and most enlightened nations in the world, old 
friends and allies, about to spill each other's blood in torrents, when this 
day there is left nothing to dispute about — nothing between them but min- 
isterial etiquette, diplomatic jugglery, and special pleading. 

" Mr. Speaker, it requires no small portion of moral courage for a man 
on this floor to speak his sentiments freely and independently on the great 
question now before us. We are in the minority in this House, which to 
some men is disheartening. Our opponents are flushed with the victories 
gained at the late elections over the Union. The majority, with which we 
are surrounded and overwhelmed, cries aloud for war. We heard it last ses- 
sion repeatedly, and have heard the same tocsin of alarm and intimidation 
sounded this year. It lias been proclaimed that there were two great parties 
in the House— an American and a French party; the patriot and traitor; one 
ready to defend and the other to betray and destroy his country. When we 
are virtually charged with treason, the charge is received with shouts of 
applause by a part of the members of this House; and instead of being the 
hall in which assemble the congregated wisdom of the United States, it wears 
every appearance of a place for a mob to meet. I will not be dispirited. I 
will not be browbeaten. My constituents shall be heard. They have faced 
the enemy in the held, and I will face their enemies here. I will speak 



SPEECH ON RELATIONS WITH FRANCE. 2 6q 

nothing but what, if here. I believe they would approve. It ].■ e v< ry 

man, on this great and momentous question of peace or war, to come oui 
full and fair. If for war. say so; if for peace, let it also be known. Th 
of us who are against war ought not to stand back and he silent, hut do all 
we can to stop it. But it the time shall come when a majorit) shall dr. Ian- 
war, then opposition ceases to be a virtue, and all sides and parties ought to 
unite and light it out like men. Should any one then give ha. k. denounce 
him as a traitor. U~ that awful day of trial shall come, and our foes are to 
he met on the battlefield, my constituents will he able proudly to compare 
with those of the gentlemen from Massachusetts and North Carolina, and m 
the comparison they will not suffer. 

" My opinion and advice are that we ought not to be hastv and rash in this 
matter. Let us wait, at least, until toward the end of the session, when we 
can hear from France. There is every hope, every probability, that the 
dispute will be amicably adjusted, and the money paid. Delay last session 
effected the passage of the bill to pay the money by the French Chambers. 
There is nothing of real difficulty between the two nations. All the sup- 
posed grounds of quarrel are the veriest diplomatic cobwebs. The opinion 
of the civilized world is against going to war for such a trifle, and public 
sentiment, in a i'tw months, here and in France and among the other nations 
of the earth, may do a great deal toward the restoration of peace and har- 
mony. Gentlemen say we must fight, or the national honor will be tar- 
nished, and we shall be disgraced in the eyes of mankind. If I believed 
the honor, fame, or character of the Republic required the sacrifice of war 
on our part, I should not hesitate a moment. No honorable man. no proud, 
high-minded nation can pause one second between dishonor and war. But 
I do not believe that the character of the American people will suffer, even 
if we should not plunge headlong into this war. 

" Mr. Speaker, let us again call to mind what this dispute is about, and 
not, in high-sounding phrases and pompous heroics played off in this 
House, lose sight of it. The insult which was offered to our flag was 
offered by Bonaparte, near thirty years ago. The American property which 
was captured on the high seas was his act ; it was done by his orders, by 
his Berlin and Milan decrees ; and by his courts of admiralty were the vessels 
and cargoes condemned and ordered to be sold. If the honor of the nation 
suffered, it suffered then. He would make no atonement for the insults 
offered to us and injuries done to our property. We did not then think of 
war; we pocketed the insult, and turned it into a money business by 
demanding a pecuniary indemnity. Even that was refused by that proud 
and haughty emperor. The like satisfaction was demanded of his suc- 
cessors, Louis XVII. and Charles X., which they refused. Louis Philippe, 
after a lapse of nearly thirty years, has agreed to pay for the injuries done, 
and, because some delays have taken place in the French Chambers in 



270 



BEX HARDIN. 



relation to the appropriation of money, we now declaim about the insults 
originally offered, and describe pathetically the sufferings of our merchants 
one or two generations ago. 

•• When a man is injured and outraged in his person and property he has 
two remedies before him, either to fight for the insult, or go to law and 
demand an indemnity in money, commensurate to the extent of the injury 
sustained. If he demands satisfaction in money he waives the other remedy, 
h is in vain to talk about honor afterward in that affair. But suppose we 
carry the comparison? and parallel still further. Suppose the original offender 
should die ; an executor is appointed, and he dies; and then an administrator 

mis non is appointed, who gives his bond for the money, but does not 
immediately pay at the day appointed, is it an insult if any delay takes 
place? Certainly not. If my debtor owes me, and is able to pay, and still 
delays payment, whose character suffers in the transaction, his or mine? 
Most assuredly, his. 

* :|; %■ $i * * ;|< >j; 

" France is our oldest ally, our firmest and best friend among the nations 
of the earth. When we were in the midst of our revolutionary struggle, 
ami our fate seemed to hang on a thread; when the fleets of Great Britain 
1 \d the ocean and her armies our land, aided by the powers of Germany ; 
when we were in our infancy, few in number, and destitute of everything but 
real patriotism ; our armies had been defeated, and we were retreating before 
the victorious enemy — all foreign powers refused to assist us, save one. 
None here will inquire what foreign power was that. The world knows that 
it was France; her young men, with Lafayette at their head, poured into 
America and helped to fight our battles ; the colors of the two nations, ranged 
on the same side, floated in the air together; and many a noble Frenchman 
>!il in our cause, fighting for us, and winning the liberty we now enjoy, 
nominally, at least. In the assistance which France rendered to the United 
States during the revolutionary war, and until peace was made by her with 
Great Britain, her losses and sacrifices, in men, ships, and money, were 
immense. Thousands of lives were lost, and hundreds of millions were 
expended; and, for all these losses, sacrifices, and disbursements she never 
charged one cent. 

******* 

• 1 have remarked, Mr. Speaker, that I believed that this resolution was 

1 up tor effect in the canvass now going on for the next President, and 

that 1 believed that this war and war panic are intended for the same unholy 

purpose. It has been visible to the whole American people for some years 

that General Jackson has been, and is now, ambitious of designating his 

. and that all his power, influence, and patronage have been 

ted to the elevation of his favorite, whose only recommendation is ser- 

ity, sycophancy, and abject flattery of the President— one who weeps when 



SPEECH ON RELATIONS WITH FRANCE. 2~ I 

he frowns, and laughs aloud when he smiles, and who has no merit but what 
is reflected on him from General Jackson. Like the moon, he shines b) a 

borrowed light altogether. 

* * * * * * :•: % 

"This last new fortification bill awakens in me a kind of suspicion that 
the administration party does not expect war; hut wishes, with war prepa- 
rations, war patronage, and war appropriations, to carry the election in favor 
of the pet of General Jackson, which may God, in His mercies manifested 
toward this afflicted land, prevent. Who are the candidates before the peo- 
ple, and who are intended to be affected by this resolution? White, Web- 
ster, Van Buren, and Harrison. Harrison, Webster, and White are men 
whose deeds will live after them, and whose memory will be handed down 
to generations yet unborn. Their actions are of a kind to In- ( [aimed by the 
nation as public property, and are identified with their country's honor and 
glory. Little Van has nothing to boast except 'the honor of serving under 
such a chief as General Jackson.' 

"Van Buren claims the presidency as a paternal estate by descent. He 
arrogates to himself, by a magical kind of inheritance, the glories a< hieved 
by Jackson in the late war. The party can not meet to do anything for him, 
unless it be on the 8th of January, the day when the western hunters won the 
victory at Orleans. I do not know whether it is calculated to excite our 
laughter or indignation and contempt at seeing the glory obtained on that 
day transferred from the West to New York — a State during our revolution- 
ary war only famed for Tories. Is there any scene in the world so ridiculous 
as to see Van Buren's friends place him before the people as the war party 
candidate, and denounce Harrison and his friends as pusillanimous, cow- 
ardly, and ready to betray their country — Harrison, who spent his youth, his 
manhood, and the prime of his life in camps and in battles, in fire anil smoke, 
combating in his country's cause ? As for Van Buren, he never smelled j 
powder in his life. Many a bloody field can attest Harrison's achievements 
and emblazon his fame and glory abroad. Kentucky has won laurels with 
him and under him. He always did her brave sons, living or dead, justice 
in the field and justice in his reports to the War 1 )epartment. In this approach- 
ing election the world will bear witness that Kentucky, among her other g 
virtues, boasts the proud one of gratitude. I know that one of her sons in 
whom she is well pleased has been selected to run on the Van Buren ticket 
for vice-president. This is a New York maneuver; it is sop to Jowler. 
Kentucky will not bite at the bait. We would delight to do honor to the 
candidate for vice-president. He has also won his fame in deeds of noble 
daring; but he must recollect that if a man marries a woman below him in 
the grades of society he elevates her to his level : if above him, he bi 
her down to his own caste. So is the fate of the candidate for vice-presi- 
dent. The candidate for President on the same ticket regulates the votes. 



-V- 



BEN HARDIN. 



"The gentleman from Massachusetts has said that those who voted 
against the appropriation of the three millions last session had but one step 
more to take, and that was to open the doors of the capital to the enemy, 
and then join them; that he was prouder of his vote last session, in favor 
of the appropriation, than any act of his whole life. How flaming is the 
zeal of the new convert. He was secretary of State eight years during the 
administration of Mr. Monroe, and was four years President himself, during 
all which time the French refused to indemnify us for our losses, and yet 
then lie was not so full of fight. I recollect in the play of Cato, when he 
called his little Senate together at Utica, just as Caesar was marching on the 
city, the fury and impetuous zeal of Sempronius, how he exclaimed : 

" ' My voice is still for war. 
Gods ! can a Roman Senate long debate 
Which of the two to choose, slavery or death ! 
No, let us rise at once, gird on our swords, 
And, at the head of our remaining troops, 
Attack the foe, break through the thick array 
Of his throng'd legions, and charge home upon him. 
Perhaps some arm, more lucky than the rest, 
May reach his heart, and free the world from bondage.' 

And how Lucius modestly replied : 

" ' My thoughts, I must confess, are turned on peace.' 

" I also well recollect the sequel, and I beg the House to mark it, and I 
hope it will somewhat attract the attention of the honorable gentleman from 
Massachusetts: Sempronius deserted to Caesar the next night, and Lucius 
remained with Cato, and fought it out like a man. This same Sempronius 
whispered to Cato to beware of Lucius — that he was a traitor. 

•• Who .ire the men the gentleman from Massachusetts has attacked in 
his resolution? Whom has he abused in his speech, and whom has he 
denounced as traitors ? for I disdain to notice his pitiful subterfuge, by say- 
ing he meant no one — it was only a personification, a figure of speech. 
They were his old friends and political supporters, who stood by him in 
former times and faced the battle and breeze ; who, on account of their 
supporting him, have been proscribed by the government and party in power, 
and are in a state of exile as it respects their own government and the 
administration thereof; they are an abused and vilified set of men; their 
only fault, endeavoring to sustain him. In this situation, what a deplorable 
u le does the gentleman exhibit ; the very man for whom they are now 
uffering has turned against them and joined the ranks of their enemies ; 
has become their fiercest assailant, most inexorable foe; driven them to the 
and then attempting to pin them up against it. How base the treach- 
ery, how black the ingratitude, and, at the same time, how melancholy the 






SPEECH ON RELATIONS WITH FRANCE. 2/$ 

sight, to see an old man, with the frost of seventy winters on his head, 
pushed on by a blind ambition and love of office, or rather the emoluments 
of office, thus to prostrate and degrade himself, and forever blast the repu- 
tation acquired by fifty years of honorable public service! When 1 recollect 
how, in 1828, in the contest for President between the honorable gentleman 
and General Jackson, I labored in his cause, rode over Kentucky, and 
addressed the people for hours together, with what indignation am 1 fired at 
his conduct now! In a spirit of true repentance do I declare, that if God 
will forgive me for what I then did. I promise never to do the like again. 

"The gentleman from Massachusetts says we (meaning himself and other-; 
have been accused of man-worship — alluding to his worshiping General 
Jackson. I do not believe that any gentleman ever accused him of su< h 
devotion to any man or friend in the world as to amount to man-worship. 
Caesar, Bonaparte, and Washington were said never to forget a favor or 
desert a friend; if any person has ever charged the gentleman with that 
quality of the heart, I never heard it. I expect it is not the man the gentle- 
man worships : it is office and its emoluments. 

»;» Jf> 5jl ^-- ?p 5j* nji Jjs 5JC 

'•The Senate, late on the night of the last session of Congress, sent a 
polite note or resolution to this House, apprising it of the result of the 
agreement of the conferees, and invitin ; the attention of the House to the 
subject. This, the gentleman says, was a gross insult to this House; and. 
if there had been time, he would have asked of the House to have sent him 
with the resolution back to the Senate, and, if he had taken it there, he- 
would have thrown it on the floor with ineffable contempt (accompanying 
that expression with a remarkable contortion of his body, by squatting, then 
jumping up with a jerk and a violent inclination of the body to the left). 
How ridiculous would such behavior have been in a gentleman of his age 
and standing; and with what pity would that dignified body have witnessed 
the impotent rage of an old man displaying such fantastic antics! 

"Mr. Speaker, when we take a view of the present condition of the 
United States, there is everything to deplore, and nothing to console us. 
We appropriate every year millions upon millions for our navy, and it has 
gone to decay; scarcely a vessel fit for service. We have appropriated, 
since the last war, about fourteen millions for fortifications; they are now 
in a state of wretched dilapidation, but few guns mounted, and generally 
unmanned. No energy in our army, as our late disasters in Florida bear 
melancholy testimony; no spirit and love of enterprise in the officers. 
While the war is raging in Florida with all its horrors, and in its most fright- 
ful forms, and we are in the daily expectation of a war with France, what 
do we behold here, in this city, and in this hall? Day after day are we 
importuned to surrender this chamber to the Secretary of the Department 
of War, to deliver a lecture on history ; I suppose the ancient history of the 

18 



274 



BEN HARDIN. 



Assyrians, Babylonians, Egyptians, Persians, Carthaginians, and Grecians. 
Instead of studying the plans of campaigns, marches, and battles, he is 
poring over the history of nations twenty-five hundred years gone by.* 
The general-in-chief of our army is president of the assembly balls, as our 
duly papers tell us, and, report says, night after night waltzing with little 
misses in their teens; and, when not at that, writing miserable plays for the 
stag' There is no laudable spirit of enterprise and emulation in the 

army, navy, or any part of the public service. Why this state of things? 
Because promotion to office does not now depend on merit, but by bowing, 
fawning, and cringing, in the palace; for all power is there. When the 
ief there frowns and stamps his foot, the whole menial pack fear and 
tremble. We are thrown upon evii and degenerate times; our government 
has every symptom of a speedy dissolution. 

" When the gentleman from Massachusetts charged treason upon a part 
of this House, the majority huzzahed, clapped their hands, and shouted, 
enacting just such scenes as took place in the convention during the Jaco- 
binacal limes of the reign of terror, in the days of Marat and Robespierre. 
When a man was denounced in the House by either of those blood-thirsty 
tyrants, the members of the convention applauded in a tumultuous manner, 
and immediately voted the arrest of the member denounced, however inno- 
cent. before night the guillotine received its victim, and he was numbered 
with the dead. 

" The storms of misfortune and adversity have been threatening us from 
every quarter — east, west, north, and south. They have gathered over our 
heads, and threaten every moment to burst upon us, and destroy our liber- 
ties forever. I put my hope and trust in God, who has saved us in all our 
trials and difficulties heretofore, and that He will yet preserve us free and 
independent, and dispel the clouds now lowering over us; and that He will 
give us once more a clear, serene, political sky." 

After, and as it was believed as the result of this speech, Mr. 
Cambreleng, who had been a most useful member and the acknowl- 
edged leader of the administration party in the House to a very great 
extent, lost his controlling influence which, notwithstanding unques- 
tioned talents, he was never able to regain. 

The first session of the Twenty-fourth Congress ended July 4, 1836, 
and the closing or short session convened December 5th following. 
Mr. Hardin was present at its opening, and participated in discussing 
many of the questions before it. His first speech referred to the 
President's message. He opposed a reduction of the tariff that was 
urged because of a surplus in the treasury. He insisted "that that 
surplus had not been produced by the tariff, but from sales of public 
lands, which had of late been specia lly active. When these sales fell 

* Lewis Cass was Secretary of War. f General Winfield Scott. 



AN EARLY FRIEND OF TEXAS. 



275 



off, as they inevitably would, the tariff would produce no surplus.'' 
Thus he reasoned. He also made speeches on granting lands to rev- 
olutionary soldiers, against the admission of Michigan, on the estab- 
lishment of a boundary between the United States and Texas, etc. 
None of his speeches are reported, except meagerly, and that against 
the admission of Michigan, which was of great length, not at all. In 
the last speech he ever made in Congress, February 28, 1837, he took 
occasion to manifest his sympathy for Texas, then struggling for inde- 
pendence. The following is from the report : 

" The Government of the United States appears unwilling to step into the 
struggle between Texas and Mexico, and intends to leave them as they are. 
For his own part, if it was left to him, he would recognize Texas the moment 
she maintained her sovereignty, for her territory was large enough to con- 
stitute a separate and a great empire. She possessed more territory than 
Portugal or than Holland; less, it might be, than Spain and France, but 
certainly more than Great Britain and Ireland. Thus, her territory was 
large enough to form an independent nation, and, as to her government, 
that also was organized and in full operation, as much as was the govern- 
ment of these United States. He thought, therefore, we ought not to wait 
to make this recognition until Mexico consented to the act. In our own 
case, France acknowledged our independence four years before Great Brit- 
ain abandoned her pretensions over us ; and, at a posterior period, we our- 
selves recognized the republican government of France, when all Europe 
was in arms against her, refusing to acknowledge her, and asserting, sword 
in hand, the claims of the worn-down family of Bourbons. Also, in after 
periods of the French revolution, we acknowledged, from time to time, the 
different governments to which France was subjected, and why ? Because 
they were governments de facto." 

At midnight, March 3, 1837, the second session of the Twenty- 
fourth Congress adjourned, and Mr. Hardin's congressional career 
was finally ended. 



276 



BEN HARDIN. 



CHAPTER XXI. 

mr. hardin's humor. 

IT is not proposed to dissect humor, nor deal with its anatomy or 
physiology. No kind of analysis of that insoluble quality will be 
attempted. No effort will be made to partition wit from humor or 
discuss their points of difference. The latter may be the atmosphere 
and the former the flash, as an excellent writer has said, but there is 
not a little uncertainty in the ideas conveyed by such metaphors. * 
Whoever attempts to run the dividing line between them will encoun- 
ter that ancient cause of fruitful litigation in Kentucky courts — an 
"interference" — which, being interpreted, signifies the case where 
the boundary of one tract of land overlapped another. 

Wit and humor seem often an irregular species of logic — not to be 
classed either in the inductive or analytic category. They are the 
merry handmaids of argument, if no more. What, indeed, is ridi- 
cule but a form of argumentum ad absurdum ? Humor is a faculty 
that comes by nature. It can be cultivated and improved, it is true, 
but nature must first have provided the faculty. The enchanting 
voice of the prima donna is inherited, however much art may develop 
and educate it. The genius of humor dwells only with its elect The 
faculty requires or concurs with certain mental aptitudes — close 
observation and acute discrimination, both as to character and events; 
a quick fancy, readiness at comparison and discerning similitudes and 
contrasts, as well as the power of accurate expression. There must 
exist a quick — an intuitive power of tracing effect to cause, the art 
of clear and ready reasoning, and a keen scent for sophistry. A prime 
aualitv in a wit is a deeo and exact knowlecje of human nature — its 
virtues and its frailties. 

Humor has had its ages and fashions, and always its latitude, its- 
nationality, and caste. The jest of the tropic would freeze in the arc- 
tic. The witticism of the cultured East seems emasculated in the rude 
and stalwart West. The humor of French and German jokes, for the 
' part, is not translatable to English perception. Bon mots are 
handed around on separate dishes in kitchen and drawing-room. If, 
as some say, the fun of the Pharaohs yet survives in modern anecdote, 
doubtless much of its Egyptian flavor has been lost. 

II R. Haweis, in " American Humorists," page 7. 



CHARACTERISTICS OF A HUMORIST. 277 

It is interesting to note the progress of American humor. That 
progress has been concurrent with the advancement of the country in 
other things. It is difficult in these changed times to appreciate the 
humor of the artifice practiced by the settler of the wilderness, besioged 
behind a tree by an Indian ensconced behind another. The latter is 
induced to empty his rifle at the white man's hat exposed on a stick 
and thus the siege is raised and fresh Indian furnished the vultun 
Falstaff and Prince Hal never felt half so merry over a jest as did the 
hunters of the West over such as this. Davy Crockett's hunting 
adventures and pioneer campaigning followed and sated the hunger 
for fun, even as Mark Twain, Bill Arp, and others of that ilk have 
likewise served this generation. 

The light of the twinkling eye, the suggestive intonation of the 
voice, and certain tricks of the facial muscles are potent auxiliaries of 
the humorous faculty. Indeed, there is no doubt they are ever pre- 
monitory or concurrent symptoms. There is also noticeable about 
the wit, not precisely a self-abnegation, but he throws his soul unre- 
servedly into the jest. He is void of pretense, is candid and sincere 
— at least for the time being. All these attributes, and more, may be 
predicated of Mr. Hardin. He had the faculty of seeing all sides of 
every subject and detecting its strong as well as its vulnerable points. 
Especially did he discover readily its weak, absurd, and ludicrous 
aspects. To him human nature was an open book and he turned its 
secret pages. His powers of description were of the highest order. 

"It was a theory of Ben Hardin's," observes Dr. Rob Morris, "advan< ed 
in conversation on this subject, that there is only a certain amount of real 
wit in human nature. It is impossible, he said, that any large addition 
shall ever be made to it. Like the gold in the hills, the quantity is limit, d 
and it costs dollar for dollar to get it out. He illustrated the theorj by 
referring to a set of comic almanacs before him, showing that by beating the 
gold almost invisibly thin it may be spread over a vast surface." 

Certainly wit and humor have their limitations, beyond which they 
can not reach. Each wit has his vein, and he must be content with 
its product and resigned at its ultimate exhaustion. John Tin mix 
and Artemus Ward each charmed in his own way, but each had 
doubtless displayed the brightest jewels of his wit before the casket 
was sealed forever. Yet their transmigrated spirits may sparkle in 
another generation, as Swinburne hath it, "making mirth for us all." 
Humor is. like the clouds, ever old and ever new — as old as the race, 
and as fresh as the last sunset. 



278 



BEN HARDIN. 



Hon. S. S. Cox, an authority in such matters, in "Why we Laugh" 
places Mr. Hardin among the foremost of legislative humorists : 

•■Who can fill the place of Ben Hardin or Tom Corwin? No one has 
approached cither, unless it be another Kentuckian, J. Proctor Knott, the 
present member from Bardstown. In him Kentucky gives to us a second 
edition of Hardin. :;: :;: '■''■'' 

"These three members of Congress — Hardin, Corwin, and Knott — are 
selected," says Cox, "to illustrate this extravagant type of humor. Whence 
came this inspiration? All three were Kentuckians. It is said of Sheridan 
that he ripened a witty idea with a glass of port, and if it resulted happily 
another glass was the reward; like the Kentucky Congressman who took 
two cocktails before breakfast. When asked why, he said, 'One makes me 
feel like another fellow, and then I must treat the other fellow.' Is the humor 
which Kentucky gave, and gives, owing to any particular juice or humor 
growing out of her soil? Is it drawn from the 'still' air of delightful stud- 

- ( Governor Corwin once told me that Hardin was the most entertaining 
man he ever knew. He had an exhaustless fund of anecdote, and with it 
great natural parts and acquired culture. His celebrity for a quarter of a 
century as a Southern Whig member of Congress was not altogether owing 
to his gift of remembering or telling good stories, nor to his bonhomie. Now, 
while Hardin is not to be classed with these characters which I have described, 
a greater disadvantage attends a sketch of his career as a humorist. He is 
not reported according to his reputation. His quarter of a century of ser- 
vice fails to show the voluminous fun with which he enlivened and enforced 
his positions. Here and there we have a few shots from small arms, as when 
he said meekly that ' if like a sheep I am shorn, unlike a sheep I will make 
a noise about it.' When denouncing extravagant naval salaries and referring 
to the naval lobby, he exclaimed, 'Their march may be on the mountain 
wave, but their home is — in the gallery!' * 

The reader is indebted to Dr. Rob Morris for the following 
expressions of Mr. Hardin on the general subject. Referring to the 
opinion expressed by Tom Corwin that the worst possible reputation 
for a politician was a reputation for wit, he said that when he made 
a viva-voce argument, the logic is lost by the audience while they are 
waiting for the humor. He esteemed wit as a valuable auxiliary to a 
local fame, as, for instance, that of a lawyer upon his own circuit, but 
to one aspiring to larger fame it was an injur). f 

• Mr. Cox refers to the circumstance that in debate in Congress he had applied the epithet of " snarl- 

to a colleague from Massachusetts, as Caleb Cushing in 1835 had retorted the same epithet 

in Mr. Hardin. General James Wilkinson, in his " Memoirs" in 1816, thus referred to John Randolph, 

" Unoffending, absent, and defenseless, I became the favorite theme of this American 

Thei 

t" If I were ^i\in > fellow of talent, with two or three facets to his mind, I would 

trll him by all means to keep his wit in the background until after he had made a reputation by his 
more solid qualities." Autocrat, page 108.) 




The Coon Hunt. 



280 BEN HARDIN. 

Mr. Hardin was fond of the late Charles G. Wintersmith, and 
admired his legal skill and his accurate and extensive learning. Win- 
tersmith delighted in Hardin's wit, and gave of him the following 
descriptive quotation : 

" He is a chief who leads his merry sons, 
Full armed with points, antitheses, and puns." 

Repartee is the best test of wit, since no time is allowed for pre- 
meditation. It nearest approaches inspiration. The following is a 
imen of Mr. Hardin's talent in that line : When a member of the 
constitutional convention, he had a colleague, a young man of fine 
parts (though suspected of egotism), for whom he had great liking. 

1 Ic will here be called X . X delivered an excellent speech on 

one occasion, which Mr. Hardin praised. But, said he to the exult- 
ant young orator, you mispronounced a word. This was contro- 
verted, but a resort to the dictionary showed the criticism just. 
Shortly afterward, Mr. Hardin made a speech, and during its delivery 
used the word leviathan, with the accent on the a in the third syllable. 

X caught the opportunity to correct his censor. " Mr. Hardin, " 

says he, " you corrected my pronunciation the other day, now you 
must allow me the same privilege." " All right," responded Hardin. 

" The accent in leviathan," proceeded X , " is on the i, not on the 

a, as you had it." " Ah! Billy," good-humoredly rejoined Hardin, 
"I fear you put too much emphasis on the ' I.' " 

When Mr. Hardin semi-annually attended the terms of the Spring- 
field courts, he always spent one night during his stay with Doctor 
Palmer, who had married his daughter Emily, and lived near Spring- 
field. This habit he continued after his daughter's death, and after 
her place had been filled by a most excellent lady, daughter of the 
late Marshall Key. Mr. Key was visiting his daughter during one of 
the terms of court, and was there one evening when a message was 
received by Mrs. Palmer stating that Mr. Hardin would shortly be 
cut to spend the night. Now, it so happened that the new constitu- 
tion had just been framed and adopted. The controversy engendered 
by it in many quarters was exceedingly acrimonious. Mr. Key had 
held the appointment of clerk under the old constitution, which office 
he lost by the abrogation of that instrument. This he regarded a 
personal grievance — and his feelings toward the new constitution and 
all who had favored it were of the most implacable nature. It was 
impossible fur him to discuss it, or even refer to it, without the most 



A CATASTROPHE. 28l 

violent exhibition of bad temper. Mr. Hardin had not only favon d 
the new constitution, but had been one of its most active promot 
He regarded his efforts in framing and securing the adoption of that 
instrument as the crowning triumph of his career. The prospect of 
Mr. Hardin and her father encountering each other filled Mrs. Palmer 
with apprehension. Hardin and Key were both old men, and with 
each this issue about the new constitution was a hobby. How to 
keep that subject out of sight, while Mr. Hardin remained, was the 
question. Mrs. Palmer communicated her fears to her husband, and 
enjoined upon him to exert himself to prevent constitutional discussion. 
Mr. Hardin arrived during the evening, and he and Mr. Key, under 
the supervision of their host, for a time got on very handsomely. 
Both were good talkers and in conversational frame, and found little 
difficulty in comparing and harmonizing their views on various topic-. 
Supper was announced at this auspicious juncture. Mrs. Palmer's 
apprehensions were not only lulled, but she began to enjoy her escape 
from the disagreeable consequences that must have inevitably fol- 
lowed the introduction of the tabooed topic. But her security 
proved false and delusive. 

The evening meal was not more than fairly begun before Mr. Key 
opened up on (what he styled) "so-called" constitutional reform. 
The new constitution he asserted was a fraud, a sham, a disgrace, an 
outrage, a swindle, an abomination, and the sum of all iniquities. 
Not only this, but its framers were a set of demagogues, tricksters, 
liars, scoundrels, jacobins, radicals, anarchists — and all who favored it 
were either knaves or fools, unworthy to enjoy the blessings of free gov- 
ernment. This, and much more to the same effect and like tenor, did 
the old gentleman heatedly launch forth upon the "bastard thing 
called a new constitution. ,- Dr. Palmer was embarrassed, and his good 
wife filled with consternation. After all precautions, the dreaded 
catastrophe had occurred, and all that could be done was to witness it- 
progress and event. Mr. Hardin, to whom Mr. Key had addressed 
his remarks, listened very attentively, but very quietly, till the 
phillipic ended. Then, with a twinkle in his eye, "Mr. Key," -aid 
he, " if I rightly apprehend the tenor of your remarks, you seem to 
be opposed to the new constitution." This concluded the subject, I 
the infinite relief of the Palmer household. 

On one occasion, when Mr. Hardin was engaged in a trial in the 

Meade circuit court, in which he took little interest, N . a push 

ing young lawyer, whose talent Hardin held in light este em, opp< 



2 82 1 ; EN" HARDIN. 

him. The evidence completed, Hardin proposed to let the jury take 

the case without argument. N objected. Hardin urged that the . 

issue was simple, the law plain, and the evidence without conflict, so 

th it neither side could hope to profit by argument. N still 

insisted on addressing the jury. The court, who had not heard this 
colloquy between counsel, ordered the argument to begin. "If it 
please your honor," said Hardin, " I did not wish to argue this case. 
It is unnecessary, and I so said to counsel for the other side ; but it 
seems that there is no way to get the load out of a small-bore rifle 
except to shoot it out." 

On another occasion he was defending a young man of excellent 
family, charged with horse stealing, a charge always more difficult to 
meet in Kentucky than willful murder. His client admitted his guilt 
to his attorney, and witnesses were at hand to sustain the prosecu- 
tion. The defendant was in jail. By dint of management a contin- 
uance was obtained, though not without difficulty. An effort to 
reduce bail, after a contest, was successful. The bail was then given. 
The defendant at that point asked advice as to what to do next. 
"Well," says Hardin, '■ your case is continued until next term, the 
court has reduced your bail, and you have now given lawful bail — 
that releases you — and unless you are a greater fool than I think you 
are, the next thing you will do will be to give leg bail." 

The power of invective and sarcasm is often allied to wit and 
humor. Of the former, Mr. Hardin was master. "He was much 
more sarcastic than witty," writes one well qualified to judge, " and 
his denunciations were as fire applied to the flesh. Indeed, they were 
often so unmeasured as to give one the idea that he was being moved 
by personal vindictiveness." He was also an adept in the art of rid- 
icule. His irony was finished and biting. Specimens of his invect- 
ive, sarcasm, ridicule, and irony abound in all his speeches. None 
are finer than those found in his speech in the Owsley controversy 
embraced in this volume. 

In Bynum against Wintersmith, a case in Meade county, Governor 
I [elm was for plaintiff, Hardin for defendant. The facts were these : 
S »me forty years ago a Yankee named Bynum visited Kentucky, 
i ltroducing the silk worm and selling the white mulberry tree {moms 
multicaulis), the leaves of which furnished the worm its raw material. 
Wintersmith became a purchaser of some worms and trees, executing 
his note for the price. The trees proved defective and died, and pay- 
ment of the note was refused. Hence, the law-suit. Mr. Hardin 



A GULLIBLE PEOPLE. 



283 



was in his element, having a natural antipathy to all new-fangled 
things, regarding them as devices to swindle the public. Improved 
stock, then first being introduced into the State, was a pet aversion 
with him. In course of argument he said : 

" I have practiced law for forty years in Kentucky. During that tim< I 

have had abundant opportunity to learn and appreciate the character of its 
people. I know them and know them well — from the inmate of the hul 
the denizen of the State capital. There never lived a people more lion 
and honorable, who were more chivalric or braver, more patriotic or mi 
hospitable, kinder or truer. They are sensible and intelligent, bin ipfe 

never existed on earth more easily humbugged. No matter what the imp< 
tire, they are always ready to embrace it and be deceived. They seem al 
lutely fond of it. Experience teaches them nothing. So they are hum- 
bugged with Durham cattle, humbugged with Berkshire hogs, humbugged 
with Brandeth's pills, and now they allow themselves to lie humbugged with 
morns m ult i caul is .' 

" I know it is claimed that Berkshire hogs are an improvement 011 the 
old stock, but I don't believe it. Mr. Helm has some Berkshires of which 
he boasts. The last time I was at his house my little grandson, Hardin, said 
to me : ' Grandpa, have you seen any of our new hog- ? ' I told him I had 
not. He insisted on taking me to see them. I happened out just at feed- 
ing time. Mr. Helm's negro man Vincent was administering cooked mush 
with a silver spoon ! " * 

The reader is indebted for an account of the incident that follows, 
to the pen of one whose name and talents are associated with the 
history of the State, f 

It is proper to premise that Mr. Hardin was intolerant of all pre- 
tenders, especially if the pretense was in the legal profession : 

" He nearly always arrived at Hardinsburg on Monday, the first day of 
the term, about 11:00 a. m. I remember, on a certain occasion, as soon 
court opened, several young gentlemen (who had just obtained license) 
were sworn in as attorneys, and, with the usual modesty ( ?) of young law- 
yers, they disposed themselves in the bar chairs very comfortably. Shortly 
afterward Mr. Hardin entered. He bowed to the court, who ordered the 
sheriff to furnish him a chair, the bar chairs all being oc< upied, the young 
gentlemen aforenamed maintaining their rights by remaining seated, and not 
one offering to surrender to Mr. Hardin. ' No, your honor.' lie replied ; 'I 
will pick one by the time I need it.' 

•'On calling the first case on the Commonwealth's docket, Mr. Hardin 
announced himself for defendant, and that he was ready for trial. The 
trial proceeded. 

* For this incident the author is indebted to trie late Rev. S. L. Helm, Stephens; 

f Colonel Alfred Allen. 



284 uliN ' HARDIN. 

•• lie paid no attention to the testimony, and it was soon ready for argu- 
ment. He arose, and, turning to the court, waved his long arm in the 
direction of the young hopefuls, all of whom had abandoned other call- 
ings, as lie knew, and said: 'Are all these lawyers I see before me, your 
honor? If so. to what is the country coming? Ruin and starvation, for 
no land, even were it the fertile valley of the Nile, could support such a 
redundant population of such lawyers, or survive so sudden a loss of consta- 
bles, doctors, bricklayers, and tailors as we have here before us. It seems 
the whole world is running to the bar. The doctor lays down his syringe 
ami vegetable pills, and he rushes to the bar. (Up sprung Dr. S , and van- 
ished from the court-house forever.) The constable jumps off his horse, 
lays downs his saddle-bags and ninepenny executions, and he levies on the 

bar. (At the word constable, Jesse M became non est inventus.) The 

bricklayer lays down his trowel and his hod of mortar, and he plumbs his 

upright way to the bar. (Whereupon Mr. K assumes a perpendicular, 

and solemnly and sternly stalks out of the court room, saying to the writer, 
who met him at the door, that ' old Ben Hardin had made a most ungentle- 
manl) attack on him, for which he should answer on the field of honor 
except for his — Hardin's — old age. 'J The tailor and dancing master lays 
down his thimble and goose, his fiddle and his bow, and dances up to the 

bar. (Thereupon C dances out of the court-house.) And so, if your 

honor please, they all rush to the bar.' At this point, discovering that the 
bar had lost its fresh tenants, Mr. Hardin proceeded to select a seat, forget- 
ting to say a word for his client in the case on trial." 

The following graphic sketch, written by a friend and cotemporary 
ol .Mr. Hardin,* is properly inserted in this connection. It not only 
abounds in racy humor, but it also affords an apt illustration of his 
skill as a practitioner: 

•• Mr. Hardin and myself were once defending a man named Alexander 
1 ison, in the Meade Circuit Court, for killing one Troutman at a shooting- 
match. Troutman had been provoking a difficulty all day with Creason, and 
at last Troutman, with a stick in hand, approached Creason, saying, 'I 
intend to give you a beating,' raising his stick. At this Creason took his 
gun from his shoulder, struck Troutman on the head with the barrel, and 
killed him. Creason was indicted for the killing, and on the trial one Law- 
rence Greer (whom Mr. Hardin familiarly called Larry) was sworn as a wit- 
tor the Commonwealth, who testified that he heard Creason say a short 
time before the killing that if Troutman crossed his path he intended to kill 
him. A gentleman in the court room came to us and said, 'You can prove 
by two witnesses now in the court room that Lawrence Greer, the witness, 
told the lather of the deceased, at a certain time and place named, that he 
would make the proof above, at the trial, for a gallon of whisky. We had 

•Judge John C. Walker, <>f Louisville. 



THE WORST MAN LIVING. JK5 

the witnesses immediately summoned. Mr. Hardin called Lawrence Greer 
back to the witness stand ; asked him if he did promise the de< eased's father, 
at the time and place referred to, that he would make that proof for a gallon 
of whisky. He said he had not. Mr. Hardin said to him, 'Larry, you 

have been a great sinner and are getting old, and I admonish you, if you did 
say so, admit it; it is a grave affair.' He still said he did not. Mr. Hardin 
then asked him if he did not get the gallon of whisk)- from Mr. Troutman. 
He said yes, he got a gallon of whisky from Mr. Troutman. ' Did you pay 
him for it?' He answered, 'That is none of your business. 1 Mr. Hardin 
said he wanted an answer. The court told him to answer the question. Wit- 
ness said he had not. We proved conclusively by both witnesses that Greer 
had so said to Mr. Troutman, the father, and had gotten the whisky. 

" When Mr. Hardin came to argue the case he turned to Greer and 
said : ' Larry, you and I have known each other a long time. You lived in 
Nelson county for many years, in which county I yet live. You have done 
many things you ought not to have done, and left. undone many you ought 
to have done, many, very many. You have been the very worst of sinners. 
You and I know who took and carried away old Mrs. A.'s geese; these 
people here don't know ; I don't intend to tell them, and 1 know you won't ! 
You and I, Larry, know who took and carried away Mr. B s hemp one 
niwhf no one here knows one word about it. Don't become alarmed. 
Larry, I am not going to tell them, and I know you won't! You and I know 
whose shoe fit the track, exactly, that went away from old Mr. Y.'s barn, 
when it was burned ; these people here don't know — perhaps never heard 
of it ; I don't intend to tell them, and it is very sure you won't; yes. I know 
vou won't ! Larry, it has been a fact in every age that some man had to be 
the worst man living. A few years ago, when that inquiry was made, every- 
body was ready to say Cy Hultz, but Cy has been dead and gone for sev- 
eral years, and some one has had to take his place. I will not say, Larry, 
who that man is, but I will say this: If I knew that God Almighty had 
issued His search-warrant and placed it in the hands of the devil and sent 
him to hunt for and find that man, and I knew he was out on that mission, 
and I was to meet you on the road, I would tell you to hide — hide quick, or 
you will be taken ! ' " 

Hon. Joseph R. Underwood, late of Warren county, was eminent 
throughout a long career, both as lawyer, jurist, and statesman. 1 1 
and Mr. Hardin were in the Legislature together in the third decade 
of the century. 

Underwood, although a man of fine abilities, was more wedded to 
form than substance, and was rarely satisfied with the phraseology of 
any proposition not drawn by himself. The House had grown weary 
of the constantly-recurring verbal discussions caused by Mr. Under- 






286 BEN HARDIN. 

wood's amendments. On an occasion when one of these had just 
been presented, Mr. Hardin arose and said: "Mr. Speaker, I con- 
sider it one of God's mercies that the gentleman from Warren was 
not upon the earth in the days of our Saviour. If he had been, he 
would, infallibly, have moved an amendment to the Lord's prayer, 
which, if adopted, might have led to the damnation of a world." 

Aaron Harding, of Danville, was a man of decided talent. He was 
for two terms a member of Congress. He was a good lawyer, and of 
most exemplar}' private character. As an orator he was earnest, and 
at limes not only solemn, but sepulchrally so in manner. He and 
1 1 i id in were employed on opposite sides of a slander suit, in Green 
county, having its origin in defendant's charge that plaintiff had stolen 
turkeys. The defendant justified. 

Aaron was more funereal than usual, his speech being character- 
ized by ghostly seriousness. In closing the argument, Mr. Hardin 
said he had encountered the best lawyers of Kentucky for a genera- 
tion past; he had, in New Orleans and Mississippi, met the strongest 
Legal talent of the South ; in the Supreme Court at Washington he 
had encountered lawyers of national reputation, and he had, on all 
those occasions, survived the conflict. But as to whether he would 
outlive the present struggle he felt uncertain, as it was the first time 
he had ever had to contend with an attorney from the other world. 

In the same vein is the following: A wealthy landlord had sued 
out a distress warrant for two dollars and twenty -five cents, balance 
of rent owing by a poor widow, and had levied on and sqld her 
last horse and last milch cow for that amount. She employed Mr. 
I lardin, who sued for five hundred dollars damages for excessive levy. 
In closing his argument he said: "It is fortunate, gentlemen of the 
jury, very fortunate, for mankind that this grasping landlord did not 
live in the days of Herod. If he had, I do not doubt but that he 
would have sued out a distress warrant against Joseph and Mary, and 
levied on the ass that bore them to Egypt, and thus have caused the 
infant Saviour to fall into the hands of that bloody tetrarch." * 

Mr. Hardin was fond of the classics. At school he had studied 
Greek and Latin, though what proficiency he had made in either is 
not known, and matters little. TVIr. Thomas F. Marshall once 
asserted that Hardin had acquired his familiarity with the classics 
through English translations. Assuming that he only knew them 



■ How did the case result?" inquired the author of the person relating the above. "Oh," said 
he, " it to.ik the jury considerably less than five minutes to bring in a verdict for the widow for five 
hundred dollar 



"narcissus. 



287 



through that medium, his attainments are not thereby discounted. 
Emerson and the hyper-critical Kentuckian evidently held different 
views of this subject : 

"The respectable and sometimes excellent translations of Bohn's Library." 
quoth the Concord philosopher, "have done for literature what railn 
have done for internal intercourse. I do not hesitate to read all the books 
I have named, and all good books in translations. What is really best in 
any book is translatable — any real insight or broad human sentiment. Nay. 
I observe that, in our Bible, and other books of lofty moral tone, it seems 
easy and inevitable to render the rythm and music of the original into 
phrases of equal melody. The Italians have a fling at translators — i tradi- 
tori tradttttori ; but 1 thank them. I rarely read any Greek. Latin, German, 
Italian, sometimes not a French book, in the original, which I can procure 
in a good version. I like to be beholden to the great metropolitan Ene 
speech, the sea which receives tributaries from every region under heaven. 
I should as soon think of swimming across Charles river when I wish to go 
to Boston, as of reading all of my books in originals, when I have them 
rendered for me in my mother tongue." 

That Mr. Hardin had assimilated and made his own the great bulk 
of ancient literature is avouched, not only by his constant use of it. 
but still more by his remarkable ability to make his references to it 
interesting to the most unlettered hearer. He once defended a man 
charged with the murder of his own slave — death having roulted 
from cruel treatment. The defense set up was that death resulted 
from natural causes. The prosecution called a young physician as a 
witness, who had seen the deceased a week before death, and he 
detailed the result of the examination then made. The witness was 
a handsome young fellow, of good address, and impressed the jury 
favorably. To parry this effect, Mr. Hardin made a cross-examina- 
tion, not specially relevant to the case. At length, when the medical 
msn, in replying to a question, inadvertently said the deceased " rode 
away on a female side-saddle," he was allowed to "stand by." In 
dealing with this witness in his speech to the jury, Mr. Hardin created 
no little amusement by expatiating on his good looks and handsome 
dress. His object in this was easily fathomed. Continuing the topic. 
" There was once at Athens,'' he said, "as we learn from Ovid, a youth 
named Narcissus, distinguished for having the most remarkable beauty 
ever known. But he had long been unconscious of it, until one day 
he caught sight of his own reflection in the waters of a pool — where- 
upon he fell violently in love with himself. This strange infatuation 



288 BEN HARDIN. 

clung to him until he became sick and ultimately pined away and 
died. I am expecting, on the arrival of every stage, to receive a let- 
ter informing me that Tom Marshall has perished from the same 
cause, and (turning to the witness) I advise you, young man, to beware 
of a like fate." 

There are but few chapters in this volume that do not contain 
anecdote or incident illustrating his humorous traits. Not only was 
his reputation in this respect established during his career, but it was 
universally recognized and acknowledged. The comic almanac-maker 
of his day made Mr. Hardin the unwilling vehicle for communicating 
jokes rather broader than he ever indulged in the most unreserved 
moments. But Ben Hardin's name gave them currency. In "Flush 
Times of Alabama and Mississippi," the author ( Mr. Baldwin) has Cave 
Burton, one of his characters, to quote Mr. Hardin's advice, on an 
occasion when Cave addressed the jury in the "Whistler" breach of 
promise case. " Says Ben, 'Cave, tap them gently and milk them of 
their brine easy. Let the pathetics sink into 'em like a spring 
shower.' " * 

'•'See Appendix, Note D. 



A BADLY-FITTING COAT. 289 



CHAPTER XXII. 



THE WILKINSON TRIAL. 



THE most noted trial in which Mr. Hardin took part was that of 
the Wilkinsons — one more celebrated on account of the array 
of counsel than any that ever occurred in Kentucky. In 1838 
Edward Wilkinson was a prominent lawyer of Mississippi, where he 
had been circuit judge and held other important posts. He had 
addressed and was engaged to be married to Miss Eliza Crozier, an 
accomplished young lady of Bardstown, belonging to one of its old- 
est and best families. Her mother was sister to Colonel Hinds, dis- 
tinguished in Kentucky annals for his military services. The wedding 
was to have occurred in December, 1838. It was asocial event of 
no small proportions to Nelson county society, and its approach 
aroused general expectation. Shortly in advance of the appointed 
day Judge Wilkinson reached Louisville, accompanied by his brother, 
Dr. Wilkinson, and his friend Mr. Murdaugh, a young lawyer, both 
also of Mississippi. The interim at Louisville was devoted to prepa- 
ration. Dr. Wilkinson had engaged with one Redding, a merchant 
tailor, for a suit of clothes. On the Saturday preceding the Tuesday 
for which the wedding was fixed, Dr. Wilkinson called alone at his 
tailor's and received the coat, ordering the rest of his outfit sent to 
his hotel. On meeting his brother and Murdaugh, they disapproved 
the fitting and style of the coat. The party then adjourned to Red- 
ding's shop, where, after some bad-humored discussion, the coat u 
returned to its manufacturer. Redding, irritated by the discontent of 
his customer, and attributing it to Judge Wilkinson, indulged a dis 
respectful remark toward the latter, which caused him to assault the 
tailor with an iron poker. The affray that ensued was quickly trans- 
ferred from the shop to the street, where it was shortly arrested. 
Bowie-knives were displayed by the Mississippians. but not used, nor 
was any one injured in the melee. The combatants separated, \\ il- 
kinson and his friends returning to their hotel, while Redding went 
in quest of an officer. 

About supper time Redding went to the hotel (the Gait House) 
under pretext of obtaining the names of the parties, in order to pro- 

19 



2 g BEN HARDIN. 

cure a writ for their arrest. Asa number of his special friends hap- 
pened to congregate about this time in the hotel bar-room, there was 
strong ground for the theory, afterward successfully maintained, that 
a conspiracy had been formed to do violence to the Wilkinson party. 
Judge Wilkinson, casually entering the bar-room, was assaulted by 
Redding with violent and insulting language. Retreating to his room, 
he soon returned, accompanied by his brother and Murdaugh. On 
this, Redding returned to the bar-room, and accosted Murdaugh in an 
offensive manner, accusing him of having drawn a bowie-knife on him 
at the previous difficulty. This Murdaugh denied with an epithet, 
and drew a Spanish dirk-knife, telling Redding to stand off, swearing 
he would kill the first man who laid hands on him. One Meeks, at 
this point, seized the wrist of his knife hand and struck him with a 

cowhide, saving, " You are the d d little rascal." Several persons 

then rushed up, and one Rothwell struck Murdaugh over the head 
with a hickory club, or stick, inflicting a painful wound. Murdaugh, 
however, gave Meeks his undivided attention, while the latter was 
industrious with the cowhide. Murdaugh changed his knife to his 
left hand, and, thus using it, caused Meeks to relinquish his right and 
retreat. With his right hand free, he made short work of Meeks, 
who died immediately from his wounds. The witnesses attributed 
one of his wounds to Judge Wilkinson. Some one gave Judge Wil- 
kinson a stab; but the chief punishment of the Southerners fell upon 
Dr. Wilkinson, who seems to have given least offense. He was 
knocked down and beaten until almost senseless by Holmes and 
ethers. Rothwell quit Murdaugh and attacked the Doctor, or, at 
least, in the confusion, appeared to do so, whereupon Judge Wilkin- 
son fatally" cut Rothwell, and inflicted a slight wound on Holmes. 
The Wilkinson party then made good their retreat, and the affair 
ended. Meeks and Rothwell lost their lives. The other wounds 
inflicted on the various combatants were not serious in their results. 
Rothwell was brother-in-law to Redding. Meeks was unacquainted 
with Redding, and why he foolishly took part was never explained. 
The Wilkinsons and Murdaugh were arrested and committed to jail. 
Excitement ran high, and apprehensions of lynching existed. A 
remark of Judge Wilkinson in the outset of the fatal tragedy perhaps 
enraged the populace more than the bloodshed. When Redding first 
abusively accosted him, he retorted that he would not quarrel or fight 
with "a man of his profession." The relative number, weight, and 
influence of the artisan class in a city like Louisville has undergone 



THE EXAMINING TRIAL. 



29I 



great diminution in the last forty or fifty years. Within that period 
machinery has revolutionized the pursuits of mankind. In 1838, 
instead of the mammoth clothing houses found in every city, there 
were numerous and extensive shops, employing great numbers of 
workmen, that furnished, as ordered, raiment for the public. Other 
pursuits were likewise thus filled. Judge Wilkinson had insulted the 
entire guild of labor, and its voice was public sentiment. But the 
excitement passed without demonstration. 

An examining trial was had at Louisville, Mr. Hardin representing 
the prosecution, Judge Rowan the defense. The night of the homi- 
cide Redding had put a 
messenger on a fleet horse 
and sent him to Bards- 
town, forty miles away, 
to engage Mr. Hardin's 
services for the prosecu- 
tion. The latter came to 
Louisville and stopped at 
the Gait House the day 
following. Dr. C. C. Gra- 
ham says he expressed 
to him privately a de- 
sire to defend rather than 
prosecute, and said that 
if the prisoner wished to 
employ him he would de- 
cline the offered retainer 
of the prosecution. Judge 
Wilkinson being inform- 
ed of this offer, said that he would engage Mr. Hardin if Judge 
Rowan needed his services. When Dr. Graham communicated this 
to Mr. Hardin, the latter responded, "It is not worth while to see 
Judge Rowan; he never needed my services." 

The examining trial was marked by great excitement. Public feel- 
ing was at fever heat, which the zeal of counsel still further augmented. 
In argument Judge Rowan was cool, collected, astute, and exhaust- 
less in resources, while Mr. Hardin in some of his appeals was vol- 
canic. Time after time would Judge Rowan interrupt him with objec- 
tions and counter authorities. Mr. Hardin (the interruption ended) 
broke away like a torrent checked awhile only to rush on more furi- 




Judge Rowan. 



2 g 2 BEN HARDIN. 

ously. Murdaugh once ventured an interruption. "Be quiet, little 
chicken," roared Mr. Hardin ; " I will come to you directly, and when 
I do I will not leave a feather of you." 

The examining trial resulted in committing Judge Wilkinson and 
Murdaugh to answer the charge of murder. 

Subsequently indictments were found accusing all three of the mur- 
der of Rothwell and Meeks. They were admitted to bail which was 
given. They petitioned the Legislature for a change of venue, that 
department alone exercising this prerogative at that time. In the 
January following, the venue was changed from Jefferson to Mercer 
circuit court, and the trial fixed for March following. In the mean- 
time, the marriage so rudely interrupted was quietly celebrated. 

Mr. Hardin, in his argument on the trial, sarcastically observed 
that Mr. Prentiss spoke of Judge Wilkinson's engagement and mar- 
riage as a special honor conferred by the latter on the State. It will 
not escape the professional eye that the Kentucky woman's uncalcu- 
lating devotion at that juncture was an auspicious circumstance for 
the defense. Immediately after the tragedy Mr. Hardin was employed 
by Redding to assist in the prosecution. He appeared at the exam- 
ining trial, and by his zeal so stirred public feeling that a change of 
venue was inevitable. That change lost the prosecution its strongest 
ally, public sentiment. 

Referring to Mr. Hardin's speech before the examining court, 
Judge Rowan said: 

'• But let me tell him if he hopes to gain anything by exciting the passions 
of the jury he miscalculates. He is not now amid the fervors which this 
case excited where it happened. He can not here produce the volume of 
passion which the false and erroneous misrepresentations of the conspirators 
produced there, and to the propagation and extension of which he, by the 
force of his acknowledged talents before the examining court, contributed. 
Here he can not, as there he did, to a considerable extent, excite the 
mechanics and working classes against the gentlemen slave-holders and cotton 
planters." 

In Mercer county, when the trial came on, public feeling was on 
the side of the defense. 

The case was called for trial at Harrodsburg by Judge Bridges, on 
the day fixed by the legislative act, March 4, 1839. On the day fol- 
lowing a postponement was granted the prosecution until the nth. 

I >n that day the trial began. The prosecution was represented by 
Edward I. Bullock, prosecuting attorney, and Mr. Hardin. For 



EVIDENCE AND ARGUMENT. 



^93 






defense appeared John Rowan, S. S. Prentiss, Colonel Robertson. 
Samuel Davis, John B. Thompson, Charles M. Cunningham, Jan 
Taylor, and C. M. Wickliffe. Prentiss was not present when the 
case was called for trial, but was expected from Washington where, as .1 
member, he had attended the session of Congress then just adjourned. 
During this delay "great was Wilkinson's anxiety," observed Pren- 
tiss' biographer, "the more especially as Ben Hardin, the Achilles of 
the Kentucky bar, had been engaged to prosecute. He feared I lardin's 
power over a Kentucky jury. "' Prentiss only arrived in court after the 
jury was completed — but his fame had preceded him. Crowds lined 
the streets to catch a glimpse of him. When Hardin saw him alight 
from the hack in which he came he remarked: " I know now what 
I've got to meet." 

The trial occupied five days — the evidence being completed in three. 
Mr. Hardin examined the witnesses for the prosecution and Colonel 
Robertson for the defense, except a few examined by Judge Rowan. 
Save a single objection at the beginning of the trial by Colonel Robert- 
son, to a part of Redding's testimony, its progress was notably free 
from those interruptions whereby zealous counsel but too frequently 
and needlessly protract trials. Witnesses were passed back and forth — 
examined, cross-examined, re examined, and re-cross-examined — with- 
out objection. The counsel on either side manifested the greatest equa- 
nimity of temper on all occasions during the trial. The theory of 
defense in evidence and argument was that Redding and others had 
formed a conspiracy to slay or injure the accused, that the attack at 
the Gait House was the result of that conspiracy ; and that defendants 
acted in self-defense. The prosecution denied this conspiracy and 
insisted that defendants had themselves conspired. The result of the 
evidence was manifestly in favor of the theory of the defense. 

The argument was conducted in the following order: Mr. Bullock- 
opened for the prosecution ; he was followed by Messrs. Robertson, 
Prentiss, and Thompson, in the order named. Mr. Hardin next 
spoke ; Judge Rowan followed, and Mr. Bullock concluded. Bullock 
was a young man " much respected for his private worth, as well 
his promising professional abilities." He made a sensible speech 
without effort at display. Colonel Robertson was sixty years ofaj 
or more, a native of Virginia, and of polished manners. I lis oratory, 
it was said, partook more of studied propriety than f< rvid eloquence. 
Of that brilliant child of genius, Sergeant S. Prentiss, so much has 
been said, and so extravagantly, that it is impossible to give the pit 



Jg _, BEN HARDIN. 

of it. His speech on this trial was one of the happiest forensic efforts 
of one of the most brilliant orators that has lived in any age. John 
B. Thompson was a bright and genial man, then in the outset of a 
career that led to the United States Senate, but still fell short of what 
his talents and genius might have achieved. 

| udge Rowan, in the course of his argument, having stated that his 
colleagues, who had preceded him, had "reaped the field," said : "I 
feel that I have been irregular and discursive, much more so than had 
been my wont in years gone by, and I ascribe it in some degree to 
the causes I have named. You, perhaps, may ascribe it to the grow- 
in- weakness of senility, and to guard against further exposure of 
weakness, from that or any other cause, this shall be my last forensic 
effort." And so it was. Messrs. Robertson, Prentiss, and Rowan, 
all gave Air. Hardin special consideration in their speeches. Judge 
Rowan, indeed, referred to the facts of the case only incidentally — 
his whole effort being devoted to an arraignment of Mr. Hardin for 
engaging as prosecuting counsel. Colonel Robertson, in concluding 
his argument, thus referred to Mr. Hardin : 

" The distinguished gentleman who aids in this prosecution has furnished 
us with some proof of the corroding influence upon the human heart caused 
by a long indulgence in prosecution for alleged crimes. I am sure that 
nature gave him a kind and generous disposition, and that he is still pos- 
sessed of these amiable qualities. I do not doubt but he has so long lent his 
aid in prosecutions of this kind that he has brought himself ' to look on 
blood and carnage with composure.' He will doubtless make, as he has 
heretofore made, a bold and mighty effort to convict the accused, though in 
my judgment such conviction would be against both the law and evidence. 

" Neither the shrieks nor tears of the lovely Andromache, nor the groans 
and lamentations of the aged Priam, can stay him in his fierce pursuit; the 
wife and the father sink into nothingness when compared with the glittering 

that awaits his efforts; he has bargained for conviction, and he goes for 
his bond. Give it to him, gentlemen. Tell him to take his pound of flesh, 
hut tell him at the same time that if in cutting it he spills one drop of blood, 
Shylock himself shall be the only victim of the law." 

The speaker refers to the fact developed in the evidence that Mr. 
Hardin was paid for his services a fee of one thousand dollars by Red- 
ding. Mr. Prentiss also deemed it worth while to allude to this fee 
in his mention of Mr. Hardin: 

"One of the ablest lawyers of your country, or of any country, has 
been employed to conduct the private part of this prosecution; employed, 



ORATORY OF PRENTISS. 2Q5 

not by the Commonwealth, but by the real murderer; him whose forehead 
I intend, before I am done, to brand with the mark of Cain, that in after 
life all may know and all may shun him. The money of tin- prosecutor has 
purchased the talent of the advocate, and the contract is, that blood shall In- 
exchanged for gold. The learned and distinguished gentleman to whom I 
allude, and who sits before me, well may excite the apprehension of the 
most innocent. If rumor speak truth he has character sufficient, even 
though without ability, and ability sufficient, even without character, to (rush 
the victims of his purchased wrath. 

" Let not the learned counsel who conducts the private part of this 
prosecution act the necromancer with you, as he did with the populace in 
the city of Louisville, when he raised a tempest which his own wizard hand 
could not have controlled. Well may he exclaim in reference to that act, 
like the foul spirit in Manfred : 

' " I am the rider of the wind, 
The stirrer of the storm; 
The hurricane I left behind 
Is yet with lightning warm.'" 

As a fair specimen of Mr. Prentiss' oratory, and of the felicity of 
his appeals to the jury, and especially that most susceptible of all 
auditories — a Kentucky jury — the following extract is given : 

" But Judge Wilkinson had no right to interfere in defense of his 
brother; so says the Commonwealth's attorney. Go, gentlemen, and ask 
your mothers and sisters whether that be law. I refer you to no musty 
tomes, but to the living volumes of nature. What ! a man not permitted to 
defend his brother against conspirators, against assassins, who are crushing 
out the very life of their bruised and powerless victim? Why, he who 
would shape his conduct by such a principle does not deserve to have a 
brother or a friend. To fight for self is but the result of a natural instinct, 
which we have in common with the brutes. To defend those who are dear 
to us is the highest exercise of the principles of self-defense. It nourishes 
all the noblest social qualities, and constitutes the germ of patriotism itself. 

" Why is the step of the Kentuckian free as that of the bounding (her; 
firm, manly, and confident as that of the McGregor, when his foot is on the 
heather of his native hills, and his eye on the peak of Ben Lomond? It is 
because he feels independent and proud; independent in the knowledge of 
his rights, and proud in the generous consciousness of ability and courage to 
defend them, not only in his own person, but in the persons of those who 
are dear to him. It was not the blood that would desert a brother or friend 
which swelled the hearts of our fathers of the ' olden time,' when in defense of 
those they loved, they sought the red savage through all the fastness of his 
native forest. It was not such blood that was poured out, free as a gushing 



296 



BEN HARDIN. 



torrent, upon the dark banks of the melancholy Raisin, when all Kentucky 
manned her warrior sires. They were as bold and true as ever fought 
beneath a plume. The Roncesvalles pass, where fell before the opposing 
lance the harnessed chivalry of Spain, looked not upon a braver or better 
d." 

Said one who witnessed the trial, the whole interest centered in 
Prentiss and Hardin. Large numbers attended from the surrounding 
C unties. The court-house was crowded during their arguments with 
the beauty and intelligence of the State. But the tide all flowed 
toward the defendants. If anything were lacking to their acquittal, 
the oratory of Prentiss more than supplied it. Said an eye-witness : 
"Great excitement prevailed during the trial. Feeling was strong 
both ways. But Prentiss' speech melted things down wonderfully." 

The prosecution had been literally overwhelmed before Mr. Hardin 
came to speak. He did not entirely conceal the consciousness of this 
fact, yet in the report of his speech unmistakable evidences of his 
genius and power appear. During the adjournments of court, and 
even the night preceding his address to the jury, Prentiss had been 
at the card table and indulging in deep dissipation. On the contrary, 
all his odds and ends of time Mr. Hardin devoted to laborious research 
and preparation. His speech occupied parts of two days. He slept 
none the intervening night — (as one described it) through the long 
hours " like a Corypheus he worked with the facts and law of his case, 
consulting authorities, arranging his matter, leaving its dress alone for 
the sure inspiration of the moment." The reporter found it " neces- 
sary" to "compress his exhaustive and masterly speech of five hours. 
The "compressing" process denuded it of many of those idiomatic 
phrases and witty sallies that lent it pungency and charm. Others 
who spoke in the trial, notably Mr. Prentiss, afterward carefully 
revised the report of their own speeches. Mr. Hardin declined 
making any revision. He complained of the great injustice done him 
in the report. The following is the speech as reported : 

" I shall, gentlemen, very humbly and very cordially congratulate you 
upon having this case brought so near a close. It has already been protracted 

ond the usual limits of criminal trials by the extraordinary ingenuity and 
uncommon array of talent enlisted on the occasion. The gentlemen on the 
opposite side have felicitated you upon the politeness of your patience, and, 
among others, I too return you my thanks for your attention. 

" I little expected when I engaged in this cause in Louisville last winter 
I should ever hav» to address you on the subject. Although I have 



SPEECH IN THE WILKINSON CASE. 297 

been fifty years practicing at the Kentucky bar, this is the first time I ever 
had to address a jury in this place, and I can not help feeling that 1 am 
much a stranger here as any gentleman who has addressed you. 1 shall, 
however, in speaking to you, apply myself to an exposition of the facts ami 
of the law bearing upon them; and whatever may be your feelings, you will, 
I am sure, keep in mind that you are bound to exercise your reason, and 
that you owe a duty of no ordinary responsibility to yourselves, your • 
acters, and your country. That duty is a sacred trust reposed in you whu h 
you can not weigh lightly without injury to yourselves as well as wrong to 
others. Nor must you surrender up your reason to your passions, and allow 
yourselves to be carried away by the shouts of applause from a fashionable 
audience, as if you were in a theater where a Junius Brutus booth and a Miss 
Ellen Tree exhibit the practiced arts of controlling the feelings and su< cess- 
fully eliciting the noisy plaudits of excitement. This is not a theater; this 
trial is not a farce; nor are you seated on those benches lor amusement. 
This, gentlemen, is a solemn court of justice, a solemn tribunal in which 
your judge, presiding with becoming dignity, represents the majesty of the 
law, and in which you are expected to deliberate with becoming gravity upon 
circumstances of awful import. The appalling death of two fellow-creatures 
is the occasion of your being here assembled, and the guilt or innocence of 
those at wdiose hands they fell is the object of your solemn investigation. 

'• Even though I knew I should have to address a jury of strangers, and 
an assemblage to whom 1 am personally unknown, I little anticipated that I 
should have to make a speech to any other audience than that usually to be 
found in our halls of justice. But my friend, Colonel Robertson, whose 
youth and warmth, in that way, urge him to precedence, has taken me by 
surprise, and placed before me a galaxy of beauty and fashion, which might 
well deprive me of my presence of mind if I were not fortified with less of 
the ardor of youth in my veins than himself, and were I not less practi< 
in ihose graces of person and manners which he can so successfully play off 
to woo and win their fascinating smiles. 

" By law, and in conformity with the original institutions upon which all 
law is founded, this trial was to have taken place where the occasion ol it 
occurred — in the county of Jefferson. The Legislature, in its wisdom, has 
thought fit to change the venue from Jefferson to Mercer county: but why. 
I am unable to say. For even Colonel Robertson, the very able counsel for 
the defense, has admitted that, although for a time great excitement existed 
in Louisville, yet, after the investigation at the examining court, that excite- 
ment was altogether allayed. In this country experience has always taught 
us that when a change of venue is sought, the object is not to obtain justu 
but to evade it. The object is to thwart and embarrass the prosecution and 
multiply the chances of eluding the responsibility of the law. How is this 
effected? Is it not by a removal to some place esteemed favorable to the 



2gS BEN HARDIN. 

accused, bv a removal so distant from the scene of action that the expense 
and inconvenience render it probable that but few of the witnesses can 
attend ? By a removal to where witnesses of a character dubious, if not infam- 
ous, where known, may find credit because they are unknown ? Here we are 
some seventy or eighty miles from the stage on which this tragedy was acted, 
vet we are asked why we did not bring the stick and the cowhide, and Bill 
Holmes, the pilot, as it we would be afraid to produce them were they 
within our reach. 1 would ask the opposite side, in my turn, why gentle- 
men have brought us eighty miles from the scene of action where we could 
have elicited the truth in every particular? I listened yesterday with great 
p easure to Colonel Robertson, whose speech was very good, and evinced as 
much of the fire of youth as the flowers of rhetoric; but I can not say it 
was much calculated to convince the understanding that the 'worse can be 
made to appear the better cause.' 

" I also listened with great pleasure to Mr. Prentiss, who addressed you 
vesterday, and in part to-day, and I must say that, although there were in 
his speech some things which I could not approve and many deductions 
which I could not admit, yet, on the whole, it was an oratorical effort which 
I could not help admiring. I am even disposed to go farther, and to say 
that I am utterly astonished that such forensic powers, so ably wielded, did 
not prove less abortive, but I must attribute the feebleness of the effect more 
to the weakness of the cause than to the want of genius in the advocate. 
However, Mr. Prentiss really astonished me with one proposition he laid 
down with respect to the common law of this country, that every man is to 
judge for himself where the point of danger lies that entitles him to disable 
another, or to kill him. lest he might, in turn, by possibility, become the 
killed ; so that, in fact, if it were so, the point of danger could never be 
defined by law, because what a brave man would consider no danger at all, 
a timid man would consider the point of danger bristling with a thousand 

ihs Was there ever such a monstrous doctrine recognized by the laws 
of any community ? 

" (Here Mr Prentiss interrupted Mr. Hardin to say that he had only 
urged that what might be considered by a man, from apparent circumstances, 
the point of danger, where resistance was necessary for his own preservation, 
would in the law be grounds for justifiable homicide.) 

" Mr. Hardin : I will come to that in due time. The dilemma can not 
be removed, that the same point, according to this doctrine, is, and is not, 
the point for resistance contemplated by the law. No, gentlemen; the law 
recognizes no such absurdities. The law was laid down yesterday correctly 
by the district attorney, that when the killing of a man has taken place, it is 
murder in the eyes of the law. and must be pronounced by the law to be a 
murder till the contrary is shown. What, then, becomes of this new doc- 
trine, unknown to the law, that the slayer, and not the law, is to judge and 



SPEECH IN THE WILKINSON CASH. 

presume the justification ? The law itself says all killing of one man by 
another is murder. The slayer, according to Mr. Prentiss, says: ( Oh, i 
I killed my man because I fancied he would kill me; it is not murder, it is 
justifiable homicide!' Yet, the law again says, if a sheriff, who hangs a 
man by lawful authority, in doing so commits only a justifiable homicide, 
should, even for the best of motives, instead of hanging the man, as bound 
to do, chop his head off with a sword, though death must necessarily follow 
either way, yet he is guilty of murder, and liable to the punishment for the 
killing contrary to the prescribed mode of his duty. 

" There are certain maxims of the law laid down in the books which are 
never disputed, because they are founded upon reason and just principles ; 
such, for instance, as these: If A kill B from necessity, to save his own 
life, the danger being undeniable, it is excusable homicide. If A kill 15 in 
a sudden heat of quarrel, it is manslaughter. If A kill 1! without what, in 
law, is called a competent provocation, it is murder. If a man fire a pistol- 
ball into that crowd and kill a man, though it were his bosom friend, against 
whom, personally, he could have no previous malice, it is murder, though 
he did not intend that death. It is murder in the eye of the law, because 
the recklessness of human life implied in the rashness of the act shows that 
general malice toward mankind which is equally dangerous to the commun- 
ity as any private malice could be. I will read you the law upon the sub- 
ject of words in a quarrel being no provocation sufficient to justify assault. 
(Here Mr. Hardin read the well-known text that words are no provocation 
in law.) ' 

" All killing is murder, unless a good excuse is shown, but words are no 
cause, because they never bring a killing below the crime of murder ; 
neither are indecent and contemptuous actions justification, according to 
Raymond and Blackstone. Here is a maxim in point: If there is a pre- 
vious quarrel between A and B, and some time after, in consequence of the 
previous quarrel, they fight— then nothing connected with the previous quar- 
rel justifies a killing, and it can not be excused unless it clearly appear that 
B, in killing A, had to do so to save his own life. 

"The application must be made to the fight at the tailor's sh6*p, and this 
answers the question why we have introduced evidence in the proof of the 
first affray. There is one principle of law which I may as well now .all 
your attention to as at any other time. 

" When men act together, and by consent, it is no matter who gives the 
wound causing death, they are all guilty in the eye of the law of the offense, 
whatever it may be. 

" And in relation to that sort of wound— if a man receive a wound not 
of a dangerous nature, but by gangrene or consequent fever death ensues, 
it is murder or manslaughter, as the case may be, as much as if the wound 
itself had been mortal at the instant. 



3oo 



BEN HARDIN. 



•■ Mr. Prentiss labored a position, and labored it ably, I admit; but Mr. 
Bullock had previously combated its application successfully. The position 
is advanced upon the well-known quotation from Lord Hale: 

•• • If A, B, and C be walking in company together, and C assault B, who 
flies and is in danger of being killed from C's pursuit unless present help be 
afforded, and A thereupon kill C in defense of the life of B, it seems that in 
this case of such inevitable danger of the life of B the killing of C by A is 
in the nature of self-defense ; but it must plainly appear by the circumstances 
of the case as the manner of the assault, the weapons with which it were 
made, etc., that B's life was in imminent danger.' 

■• A man seeing another kill a third person may kill the man about to com- 
mit the felony, but then it is at his peril he does it, and he is responsible to 
the law for his interference. Upon this text, if you are to acquit Judge Wil- 
kinson it must lie apparent that when the stabbing took place there must have 
been manifest danger of his brother's life; there must have been an apparent, 
an absolute, necessity. To show that there was no such necessity, and to 
place before you a clear view of the leading features of the facts, I will now 
claim your attention to the review I shall make of them. 

"Mr. Redding keeps what is called a merchant tailor's shop on Main 
street, in Louisville. His store is not far below the Gait House, on the oppo- 
site side. 

"These three gentlemen now arraigned before you are residents of the 
State of Mississippi, and formerly, as I am informed, were residents of the 
State of Virginia, and, for aught I know, of the same county, town, or vil- 
. They came to Kentucky early in December, for what is of no import- 
ance that I can see, although it is made to cut a conspicuous figure here as a 
favor conferred on Kentucky — a contemplated marriage at Bardstown. They 
arrived at the Gait House. Where Judge Wilkinson had his clothes made 
up, if he had any prepared for the occasion, is not shown. Where Mr. 
Murdaugh had his made, if any, is not shown. But it was shown that Dr. 
Wilkinson was to have clothing made at Redding's. They were made with 
great punctuality, and the Doctor came to Redding's store at the appointed 
time. He tried on the new coat, and seemed well pleased with it. So 
satisfied was he with the coat that he wore it on the spot, and left a one-hun- 
dred-dollar bank bill on account of payment, requesting Mr. Redding 
would hold over the bank bill, which was of a Mississippi bank, till some 
expected change for the better would take place in the rates of discount. 
Dr. Wilkinson then went away, wearing the coat, and desiring the other 
tilings to be sent to the Gait House. As I now come to where it will be 
nec( for me to mention the names of the witnesses, I beg it to be 

understood that I do not mean to avail myself of the example set by the 
opposite side. I will not shelter myself behind my professional duty, to 
villify an unfortunate witness, disarmed of his self-defense — unfortunate, 



SPEECH IN THE WILKINSON CASE. 301 

because of his inability to make any reply in the same public court in whi< h 
he is maligned. Younger gentlemen at the bar than 1 am may indulge in 
the practice, and, perhaps, the rashness of youth and inexperience m 
excuse what wisdom and manliness could not justify. No < hara< ter, how- 
ever spotless — no reputation, however unstained before — can escape the 
sullying hand wantonly raised to tarnish it, where there ia no immediate 
opportunity of wiping away that which corrodes while it damps the luster. 

"When Dr. Wilkinson returned to Reddin-'s store, accompanied by his 
brother and Mr. Murdaugh, some objection was made to the collar ot the 
coat. It was no serious objection, we may suppose, for we hear from Mi. 
Prentiss himself, ' the expectancy and rose of the fair State,' that he. per- 
haps, would not have been quite so fastidious. Perhaps some young fellow 
like my friend Colonel Robertson, 'the glass of fashion and the mold 1 1" 
form,' might have been a little squeamish ; but, for myself, every one knows 
I am not particular. I never should have knocked down a tailor with an 
iron poker because there was a shade of fashion lacking in the collar of my 
brother's coat. The whole thing is a matter of taste, the poker included. 

"There was, however, some objection to the fashion of the coat — and 
that objection was thought grave enough to enlist the triple wisdom of a 
dignified judge of the land, an eminent doctor of a distant State, and a >age 
member of the Mississippi bar. Yes, with this formidable array of judicial 
wisdom, pharmaceutic skill, and legal research, these three gentlemen came 
to a little store in Louisville, to fight a poor tailor ! And all about an unfash- 
ionable twist in the collar of a coat. 

"To be sure they came from the Eldorado of the South, with their 
thousands of bales of cotton condensed into their pockets. They were 
perfect magnets of attraction, for the secret of their loadstone lay wrapped up 
in their Mississippi bank notes. Hotel-keepers were bowing to them on all 
hands; tradesmen and store-keepers honored the pavement they trod; and 
as to tailors — I am ready to believe they became perfectly fascinated with 
them. Nay, I even make no doubt that the keepers of watering establish- 
ments and medical springs submitted to the soft impeachment, and became 
devoted to their interests. It is the necessary consequence of the influence 
of cotton bales. 

" Here was a hard-working tailor, ever on the watch for good customers. 
bowing to them as assiduously, if not more assiduously, than the hotel keep- 
ers or spring doctors, taking back his coat, I have no doubt, with tears in his 
eyes; but is it reasonable to suppose that, fascinated as he was by the ability 
of such customers to pay, he would be so blind to his own interests as to give 
unprovoked quarrel to such customers? However backward he may have 
been from prudence and circumstances, it seems there was no want ot read- 
iness to carry matters with a high hand on the part of those with whom he 
was dealing. 






302 



BEN HAKDIN. 



" Judge Wilkinson is sitting on a stool at the stove, and when he sees his 
brother about to pay for the pantaloons and vest, he interferes, without being 
( ailed upon to do so, and opposes the payment for these things, upon which 
the tailor very naturally asks him what business he has to interfere. The 
judge, without telling him that he was the doctor's brother, which Redding 
did not know, and that as much as he had a right to advise him, jumps up, 
snatches an iron poker, with which a man could be knocked down as readily 
as with a crow -liar, and for the small provocation of a tailor saying 'You 
make yourself a little too busy in the matter,' ignorant that he was addressing 
a dignified judge, the judge aims a deadly blow at his head, which, if not 
fortunately warded off, might have involved consequences to which I must 
uot advert. What does this prove? If it proves nothing else, does it not 
show plainly that fudge Wilkinson is not quite as mild and forbearing in his 
disposition as his friend Mr. Prentiss would have you to believe? Did Judge 
Wilkinson's conduct show that it was his belief men's passions should be 
subject to the control of law, if not of reason ? that he was in principle a 
respecter of the law in this instance? 

•■ 1 know that it will be argued that there is a wider latitude given to the 
restraints of law in the Southern than in the Northern States, and a false 
assumption is built upon this circumstance, that the free use of personal 
liberty, to avenge private quarrels, gives greater bravery to a people. But 
1 have read, I have witnessed, and I believe that the people of New Eng- 
land, a section of this great republic where you can get no man to fight 
duels, and where every man throws himself under the protection of the law 
for the redress of his private wrongs, when they have been called into the 
tie-Id for the protection of their country, have shown the brightest examples 
in modern history of personal bravery and national valor. Show me where 
men have been more prompt to rush upon the bayonets of their country's 
invaders than the heroes of New England. Sir, courage and bravery 
belong to the respecters of the law which protects every man's rights in a 
civilized community. Climate, in a country of such vast extent as this, may 
have its influence on men, as it is known to have on the inferior race of ani- 
mals. You may meet the lion, distinguished for his courage and his power, 
in the Harbary States, where, conscious of his strength, you may pass him 
unmolested, if you are not the aggressor. As you descend to the more 
southerly latitudes, you meet the leopard and the panther, with whom 
treat hery and ferocity are the substitutes for courage; and when you pass 
the equator you meet the hyena, the emblem of uncompromising cruelty, 
without a redeeming quality. Men may, in like manner, be affected by 
climate ; and he who on the iron-bound coast of the frozen North, or on 
the arid rocks of New Plymouth, would illustrate every noble virtue of his 
nature, not less distinguished for his piety than his patriotism, for his endur- 
ance than his courage, and for his generosity than his bravery, when trans- 



SPEECH IN THE WILKINSON CASK. 



3< »3 






planted to the enervating regions of the South, may become different and 
degenerated, trusting more to his interests than his patriotism, to advan 
than to courage, and to concealed weapons than to bravery. 

" But to resume my review of the evidence. Judge Wilkinson, so remark- 
able for his mildness and forbearance, as a sample of these qualities aims a 
blow, as 1 have said before, at the tailor's head, which probably would have 
killed him had he not warded off the blow with his arm in a manner to give 
great offense to Mr. Prentiss, who can not see the propriety of a tailor -rap 
pling with a judge to prevent a repetition of blows that might break his I 
The little tailor, however, did grapple with the judge, and, dragging him to 
the side door, he falls with his adversary out on the pavement. The tailor, 
though small, being strong and active, turned the judge under, and as he- 
did so Murdaugh hallooed out, 'Kill the d — d rascal' — a command which 
the doctor was about to obey: and when he was within a couple of inch< 
plunging his dirk into the tailor's heart, Mr. Redmond caught the doctor's 
arm. But for that interference it would have been the last of Redd 
career. Mr. Murdaugh had hallooed out to the doctor, 'Kill the d — d 
rascal!' This is easily accounted for. When he saw that Redding by Red- 
mond's interference had gained the advantage, he perceived that the tables 
were turned, and, fearful of the consequences, became quite as impatient to 
have them parted as he had before been anxious to have the tailor killed. 
Well, they are parted; and when they get up, Dr. Wilkinson still has his 
knife drawn. Mr. Murdaugh has his knife drawn, and the judge has his 
favorite weapon, the poker. The little tailor's courage, notwithstanding this 
formidable array, is up, and steps forth, a David before Goliah, and offers to 
fight the whole three of them if they will lay aside their weapons. This, 1 
think, however, was a mere brag with the poker players, for I do not believe 
he could have done it. Five witnesses swear that both Dr. Wilkinson and 
Mr. Murdaugh had out their knives. Several concur that Dr. Wilkinson 
re-entered the store with his knife drawn, demanding his one-hundred-d< 
bank bill. All agree that he got it, and many agree that when he and his 
companions left for the Gait House, two went away exhibiting their knives, 
and one rejoicing in the poker. The knives, to be sure, have been identi- 
fied as white-handled knives. Mr. Prentiss, in that able speech which you 
have all heard and admired, and which, it must be admitted, like a V 
India tornado, swept through this house carrying everything before it, even 
to the reason of many who heard it, seemed to think that we had some par- 
ticular fancy for the handles of the knives because they were white handles. 
He thought we dwelt uncommonly on the whiteness of the handles, till like 
spectres they were continually flitting before our visions. With all this : 
ical or forensic coloring we have nothing to do; we only identified them. 
the gentleman has failed to contradict us by proving that they were bla< k, 
green, or red. 



304 



BEN HARDIN. 



"We have now, gentlemen, traced a small portion of this affair at the 
tailor's shop. In what occurred there immediately after what has been 
mentioned, we find the following facts established : Mr. Redding swears that 
he was advised to enforce the law against these gentlemen. The principal 
officer Hi' police, the city marshal, is usually to be found about the mayor's 
office or jail, from the peculiar nature of his duties. Mr. Redding proves 
that he and Johnson went toward the mayor's office and looked for the mar- 
shal at Hyman's and Vacaro's coffee-houses. Not finding him there, they 
went on to the mayor's office. They applied at the mayor's office to Mr. 
Pollard, clerk of the city court, and told him that one of the gentlemen was 
named Wilkinson, and that the names of the others they did not know. 
They were told by Mr. Pollard that they should have the names ; or, if they 
wished, they might have a blank warrant to be filled up with the names 
when ascertained. This Redding declined upon being told that if he could 
meet the marshal he could arrest the parties without a warrant. Redding 
and Johnson proceeded to the jail in search of the marshal. Not finding 
him there, Redding returns to Market street, at the corner of which he met 
Roth well, near his residence. He tells Rothwell, his brother-in-law, the 
nature of the affair; Rothwell goes along with him. And here I must 
remark that, to come down to Market street from the jail is the shortest 
way, though my friend, Colonel Robertson, thinks that a man may go 
around by Jefferson street, a few hundred yards out of his road, by the way of 
a short cut. But Redding being but a plain man, not given to sophistical 
deductions, believes the nearest road is the shortest cut, and took the short- 
est cut by Market street, where he met Rothwell, as I have said, and told him 
what had occurred. He did not ask his brother-in-law to go with him, but 
his brother in-law did think proper to accompany him. There was no Bill 
Holmes, no Marshall Halbert, no Billy Johnson; no one but Rothwell 
accompanying Redding. Mr. Graham swears there was no one with Red- 
ding but Rothwell, when he met them near the Gait House. Where was 
this terrible array of giants and Patagonians of which we have heard so 
much ? Why, nowhere, to be sure; the gentlemen have only drawn largely 
on their imaginations. As Sheridan once said of Dundass, they are indebted 
to their imaginations for their facts, though I will not go so far as to say of 
my sprightly friend. Colonel Robertson, or my brilliant friend, Mr. Prentiss, 
that either is indebted to his memory for his wit. 

"Jackson swears, indeed, that he heard of the proposition of going to 
the ( '.alt House to give the Mississippians a beating ; yet Graham swears Jack- 
son would always lie a little. This Jackson, whom we have shown to be 
unworthy of credit, swears to that being a fact which is contradicted by 
Redding, Johnson, and by Craig, whose credibility is unimpeached and 
unimpeachable. Hut it seems Mr. Prentiss takes peculiar exceptions to Bill 
Johnson, because he uses strange figures of speech and low and outlandish 



SPEECH IN THE WILKINSON CASE. 305 

tropes and metaphors. Well, the gentleman ought not to blame poor John- 
son for imitating his betters in the arts and graces of oratory. I suppose he 
has been reading the newspapers in which the reported speeches of the m 
eminent members of Congress are recorded, and he finds one distinguish 
gentleman charges a party with being like a greasy pack of cards, all spotted 
and marked and shuffled together. Another young aspirant compares tin- 
secretary of the treasury, a dignitary old enough to be his lather, to a she- 
bear running through cane-brakes and dropping her cubs at every step ; and 
yet Johnson is blamed for his figures, if he ever used them, ' of hides full oi 
shucks,' and 'skinning of sheep.' I thought Mr. Prentiss, who so lately 
returned from Congress, would have admired Bill Johnson for being so apt 
a scholar, like that classic personage, Zip Coon, in picking up the new and 
improved style of tropes and metaphors now so fashionable in the places 
which he himself has made resound with the aptness of his illustrations. 

'■Gentlemen, I had got to this place, in the affair at the Gait House, 
when Redding and Rothwell were seen, unaccompanied by any one, enter- 
ing that hotel. Redding says when he went into the bar-room he looked 
over the register and called for the names. Scarcely had he got them when 
fudge Wilkinson entered and stepped up to the counter to take a drink of 
water. Redding addressed him thus : ' Sir, I believe you are the gentleman 
who struck me with the poker, in my own house, this evening?' If Judge 
Wilkinson was sorry for his imprudence, why did he not then say it was in 
a hasty moment, and, upon reflection, he felt that he was wrong? Could 
Redding have resisted the ingenuousness of such an answer to his inquiry? 
Could he have harbored for a moment longer any irritation for an acknowl- 
edged injury ? But what did Judge Wilkinson say or do? Why, he heaped 
insult upon injury by an aristocratic allusion to the tailor's profession. ' I 
will not,' he replied, ' fight or quarrel with a man of your profession ! ' Now, 
although I agree with Mr. Prentiss that there is nothing disgraceful in a 
profession, and I think the poet has expressed himself with scarcely less 
felicity than Mr. Prentiss on the subject : 

" ' Honor and shame from no condition rise ; 
Act well your part, there all the honor lies.' 

And as Burns says, 

" 'The heart's ai the part, ai 
That's right or wrang ; ' 

Yet, we can not help imbibing with our literature and our sentiments many 
trifling prejudices from the mother country, where aristocratic pretensions 
have too successfully attached disgraceful notions to certain pursuits of 
industry, and among these, the profession most sneered at by the would-be 
wits of the last century is that of a tailor. And, although a man of that 
profession here may justly feel that he is as respectable, and follows as 

20 



306 BEN HARDIN. 

respectable a calling as any other man, yet, when he thinks those old sneers 
arc leveled at him as an insult, he naturally resents it with the indignation of 
an honest, industrious, and free citizen, not bound by a servility unknown 
to us, to succumb to him who dares to utter it. 

'* There is. I fear, a principle growing up amongst us inimical to our repub- 
lican institutions — a principle of classification favorable to aristocratic dis- 
tinctions. We have our bankers, lawyers, and doctors, arrogating one rank 
in our society ; the statesmen, heads of departments, and officials, another. 
Our mechanics and those who toil by the sweat of their brow to produce our 
riches are cast into the shade; and knowing, as they do, that such an 
attempt, however noiselessly it is made, still exists palpably, is it any wonder 
they would be sensitive to every whisper that is breathed to mark the invid- 
ious distinctions? An apparent unimportant word may wound deeper than 
rough language. Call a man a knave and he may forget it ; but call him a 
fool and he never forgives you. Call a young lady a coquette and she may 
pardon you ; but tell her she is ugly and she will never abide you the longest 
day she lives. Tell a tailor he is a botch and he may not even get angry 
with you ; but sneer at him about his goose and his profession and you insult 
him, though the words in themselves are harmless. It is the allusion to the 
prejudices that have existed which carries the poison of insult in its barb. 
Sir, we must not disguise the fact that there-is a line of demarkation drawn 
by the proud and arrogant between themselves and those who live by the 
sweat of their brow; between the comparatively idle, who live but to con- 
sume, and the industrious, who work but to produce ; between the drones of 
the hive and the laboring bees. And to which, pray, is the country in its 
strength, prosperity, and wealth, indebted for its teeming productiveness? 
To which for her energy, enterprise, protection, genuine patriotism, and 
celerity in national or municipal times of danger? Go to Louisville when a 
portion of the city is enveloped in flames and you will see a thousand 
mechanics rushing into the devouring element for the protection of prop- 
erty, while the lawyer and judge and haughty aristocrat walk about as spec- 
tators with their hands in their pockets. The mechanics compose the mov- 
ing power and labor working machine upon whose industry we all feed and 
fatten. Their labors are the wealth of the country, and when we cease to 
honor and cherish them, we poison the springs of our own invigorating 
prosperity, and cut off the sources of our own enjoyments. Do we treat 
them with gratitude when we taunt them with epithets, which they esteem 
derogatory or insulting ? Are we to treat them thus in the halcyon days of 
peace, and when the thunder cloud of war gathers around our course, with 
a monstrous pusillanimity, fling ourselves into their arms as our only hope 
and rescue? Has not the history of our country shown, and will it not 
show again, that when the storm of invasion ravages our coasts, our safety is 
to be found alone in the strong sinew and ready arm of our laboring popu- 



SPEECH IN THE WILKINSON CASE. 307 

lation? Where, then, are your bowie-knife-and-pistol gentry, your duelists 
and your despisers of the man who lives by the sweat of his brow ? Sir, 
they will be found cowering and lurking where they may snuff the battle afar 
off, and hide their once lofty heads in ignoble safety. But I will not con- 
sume your time with recitals which may be found in every page of our his- 
tory. I shall return to the evidence in the case before you. 

" Mr. Everett is told by Mr. Sneed that there is likely to be some diffi- 
culty. Mr. Everett goes into the bar and by some indications to the judge 
meets him in the passage and takes him to his room, where they find Dr. 
Wilkinson and Mr. Murdaugh. Judge Wilkinson relates to them what has 
happened. The judge, having made this revelation, asks Everett to provide 
him with pistols. Why? For what did he want them? Was any one 
attacking him there or likely to do it? They were safe in their room. They 
could only want pistols for the purpose of descending and making the atta< k 
themselves. But Everett is asked to provide pistols. He said he would 
try, and with that avowed purpose, left them. He had not been gone fifteen 
minutes, in the opinion of some — in the opinion of others scarcely ten — 
when Judge Wilkinson, with this lower-county tooth-pick (taking up the 
bowie-knife) — not trusting this time to the more merciful weapon with which 
he had been practicing, the tailor's poker — with this lower-county tooth pi< k 
he started down prepared to use it. Did he know Roth well ? Did he know 
any but Redding? No man had accosted him but Redding. Why, then, 
did he come down with this terrible implement of murder? Why, sir. just 
exactly for this reason, that he had been mortified at the result of what 
happened at Redding's store. The judge of the land had been turned over 
by a tailor. He had been bearded and abused by a tailor, and he provided 
himself with his bowie-knife and went down to have another deal with that 
tailor. 

" Mr. Prentiss seems to think the judge had a right to go down to his 
supper. Why, so he had ; but he had a right to wait for the bell to ring. 
He had no right to eat his supper before it was served up — no right to take 
his bowie-knife down to the kitchen and terrify the cooks to allow him to 
devour the supper while it was cooking. And, had the supper been ready. 
there were table-knives wherewith to carve his meat, and he had no right to 
carve it with a bowie-knife. But the supper was hardly cooking when he 
went down. The bell had to ring over the private passage up-stairs before 
it was rung below; and, when rung below, the folding doors had to lie 
thrown open. But the bell had been rung nowhere ; and Judge Wilkinson. 
Dr. Wilkinson, and Mr. Murdaugh, came down before any lulls were rung ; 
therefore, it was not to supper they came down. Which table had Judge 
Wilkinson been in the habit of going to, the large table, or the ladies' table ? 
There is no proof that he and his companions boarded at the large table ; 
and it is known that many gentlemen as familiar with the house as they had 



3 o8 



BEX HARDIN. 



been, prefer the private or ladies' table. We have every reason to believe 
that was the table at which they boarded. The entrance to the room where 
that table is kept is not through the bar-room. One entrance to the large 
dining-room is, indeed, through the waiting-room, and there is a bar in that 
waiting-room at which many gentlemen who are not pleaders become suit- 
ors, make motions, and put in their pleas. I sometimes make my appear- 
ance at that bar, but I am not summoned by the attachment of the bottles. 
1 go to hear the politics of the day — for, although I have long since quit 
the field, I can not be cured of the curiosity to know what wrangling is 
going among the little juntas in every village, as well as among the mighty 
ones of Congress. 

"When these three gentlemen got into the bar-room, Mr. Redding was at 
the counter; Mr. McGrath was inside of it; Mr. Reaugh was at the fire. 
Some say Mr. Redding came in immediately after the judge. You must 
expect that out of twenty witnesses no two will agree in all the facts ; but in 
a transaction like this, where several fights were go'ing on — where in every 
corner a man was bleeding, or dying, or suffering — that no two men could 
see anything or everything alike is to be expected. But, gentlemen, by col- 
lecting all the evidence together, contrasting, comparing, and justifying one 
by another, we can arrive at the facts of the case clearly and beyond the 
probability of a doubt. We can arrive at them with as much certainty as we 
can at any other set of facts. And from this manner of collating the facts I 
am enabled to present them to you without fear of contradiction. 

" One of these facts is that Judge Wilkinson walked across the bar-room, 
some twenty-five feet, when he came in. Mr. Trabue, a man whose evidence 
is to be depended upon, seems assured that when Judge Wilkinson came in 
he walked three or four times across the room, and then stood awhile with his 
eyes fixed upon Mr. Redding, his foot advanced, and his right hand behind 
in his coat pocket, and, I make no doubt, with his hand grasping the handle 
of this very bowie-knife. At that moment Mr. Murdaugh went up to Red- 
ding. I will not say, with one of their own witnesses, that in going up to 
him he rattled like a viper; but as he went up he addressed Redding, say- 
ing, ' I understand that you say I drew a bowie-knife on you in your shop 
this evening ; if you say so you are a d — d rascal or liar ! ' And as he said 
so he opened his knife and elevated it, as one said, or held it down, accor- 
ding to another. Yes, he accosted Redding in the most insulting terms, and 
threw open his knife at the same time. Is there any witness who has said 
Redding accosted him in an angry manner? One person said of the knife : 
' Lord ! how it gleamed in the candle-light ! ' 

"The most warlike nation the world ever saw was Sparta. When the 
Spartans prepared for battle, they polished their arms to glisten in the sun. 
They washed their clothes clean, combed their long black hair, and sang the 
song of battle. I have no doubt Mr. Murdaugh, if in the ranks, would have 



SPEECH IN THE WILKINSON CASE. 



309 



done the same. I make no doubt he would be the last to run. I make no 
doubt he would have been among the foremost to make his gleaming blade 
glisten in the sun. The highest evidence of a man's dexterity and intent 
to use his weapons is the high polish he gives them, and the high si H 
preservation in which he keeps them for use. Of Murdaugh's dexterity in 
the use of his knife in the work of death we have, unfortunately, too much 
proof; of his disposition to use it we have the evidence of the high order 
in which he kept it for use, even in that state of Spartan polish, which made 
it gleam in the candle light as the sword of a Spartan would glisten in the sun. 

"We are told Meeks was determined for a fight; vet Oliver, whose 
friendship for these gentlemen seems to have been of the most ardent and 
disinterested kind, gives up to Meeks his knife, after having so easily 
obtained possession of it on the small pretense of picking his nails. He has 
been invited by Oliver to drink at a 'saloon,' opposite the Gait House. 
They dignify these establishments nowadays by the high-sounding title of 
'saloons,' but when you enter one of them you find it the vilest groggery 
in the world. These dignified groggeries exist to a shameful extent in 
Louisville, and why? Because the politicians of Louisville are too busy 
with their unimportant bickerings, or too truckling, to put them down. They 
are the strongholds of the voting interests of Louisville; and the truckling 
politicians, who are ready to sacrifice every principle for the triumph of 
party, court the coffee-house keepers and bend in supplication for their elec- 
tion to the inmates of the groggeries. Even the municipal government is 
either influenced by paltry mercenary motives in its avidity for the revenue 
of licenses, or it has not the nerve or public spirit to grapple with the mon- 
ster. Talk of our Constitution being the greatest, the purest, and the mosl 
efficient on the face of the earth ! Yet, here is an evidence of its workings in 
a duplicate government. The most destructive of vices, because the parent 
of most, is licensed, encouraged, fostered, pandered to, by politicians, and. 
through their truckling, by the very local government itself, as if the misery 
and debasement of the community were more the end and aim of their rule 
than encouragement of virtue, industry, sobriety, and rational enjoyment. 

"We learn that Meeks was unknown to many — a slender, small, and 
weakly man, with a bit of a cowhide, the lash of which some one says was 
knotted. From what we learn of this cowhide, I verily believe it would 
take at least five hundred knocks of it to kill a man ; and I doubt if he could 
be well killed, after all, even with five hundred knocks with it. Meeks, 
unfortunately for himself, stepped up to Murdaugh and said. ' Yes, you are the 
d— d little rascal who did it.' In reply to this, the very first lunge Murd 1 
made at him severed a vital artery and caused his instant death. 1 am no 
physician, and know not technically what effect the cutting of that artery may 
have; but I believe it to be as deadly as if the brains were blown out or the 
heart pierced. A man stabbed through the heart no longer lives or breathes, 






, IO BEX HARDIN. 

but lie may stand a minute. Meeks fell, and in attempting to resume his 
feet as he leaned on a chair, pitched forward on his face, and when he was 
examined he was dead. 

•• When did Rothwell strike Murdaugh? Not till Meeks was killed. Then, 
it is proven, Rothwell struck with a cane and Murdaugh was beaten back, 
and at that instant the tide of battle rolled on to the right corner as you face 
the fire, and then Rothwell was seen losing his grip of the cane in his right 
hand, and he was seen endeavoring to resume his grasp of it. General Cham- 
bers thinks it was Dr. Wilkinson whom Rothwell was beating at in the right- 
hand corner, but every one else says it was Murdaugh. Every witness swears 
Rothwell was engaged with Murdaugh in the right-hand corner while Holmes 
was engaged with Dr. Wilkinson in the left-hand corner. Let us now con- 
sider the wounds received by Rothwell. Dr. McDowell says the puncture 
in Rothwell's chest might be made by this knife carried by Murdaugh. The 
skin by its elasticity might yield without having an orifice as large as the 
blade, afterward apparent. 

" Who gave Rothwell that wound ? Why, Murdaugh, and nobody else. 
This accounts for Rothwell losing the grip of his stick or his cane. The 
moment the knife penetrated his chest on the right side, that moment his 
arm became paralyzed, and he could not hold his cane. He caught at it, 
but did not use it after. Just then Judge Wilkinson came up behind with 
his bowie-knife in his hand, and General Chambers says he saw him make a 
lunge at Rothwell and stab him in the back. If two men are engaged in a 
figh t _ on e with a dirk-knife like this, and the other with a stick— in the name 
of God, let another with such a bowie-knife as this stand off; but if he must 
interfere on behalf of him who has the deadly weapon, and against him who 
has not a deadly weapon, let him do the work of death front to front — let 
him stab him in the breast and not in the back. But, to come up behind 
and stab him in the back, who is already overmatched by his opponent in 
point of weapons, evinces a disposition which I shall not trust myself to 
dwell upon or to portray. Ossian, in speaking of Cairbar's treachery, says : 

" 'Cairbar shrinks before Oscar's sword! he creeps in darkness behind a stone — he 
lifts the spear in secret — he pierces my Oscar's side ! ' 

"By this time Dr. Wilkinson was down in the left-hand corner and 
Holmes over him. The fact is, Holmes was the only man that knocked the 
doctor up against Trabue, though Halbert boasted of having done it. It 
was only a boast in Halbert, for I believe he goes over his foughten fields 
more at the fireside than on the battle-ground. In the language of Dryden, 
speaking of Alexander : 

" ' The King grew vain ; 
Fought all his battles o'er again, 

And thrice he routed all his foes, 
And thrice he slew the slain.' 



SPEECH IN THE WILKINSON CASE. 311 

" (It was now five o'clock, and Mr. Hardin requested an adjournment, as 
it would probably take him two hours more to conclude his argument. To 
this the Court assented, and an adjournment was made to half-past seven 
next morning.) 

FIFTH DAY. 

Friday, March 15, 1839. 

"(The court resumed the trial at a quarter before eight o'clock. Early as 
the hour was, there could not have been less than two hundred ladies in the 
gallery, and upward of a thousand men in .the arena of the court. After 
the jury-call and the reading of the minutes, the court required Mr. Hardin 
to resume his argument. Mr. Hardin commenced at eight o'clock and spoke 
without intermission for upward of two hours.) 

"Mr. Hardin Gentlemen of the jury, I would endeavor to resume the 
few remarks on the evidence which I offered yesterday, as near the precise 
place where I left off as possible, if I did not know that in the present case 
such particularity is not so requisite as in the case cited by John Ran- 
dolph, who once told of a man that was so precise that he could, if inter- 
rupted and called off in the middle of his dinner by the sound of a horn, 
take up his dinner exactly at the identical bite where he had left off. I am 
not quite so particular, and shall probably recapitulate some of the evidence I 
have already gone over. 

"Yesterday evening I attempted to give you the law and the facts of the 
case as nearly as possible, as far as I went. I shall now repeat that you are 
not to take as facts all that may be sworn in a cause. Although witnesses may 
be men of undoubted integrity and veracity, yet all they state are not facts. 
They are fallible beings, and likely to misconceive and misinterpret facts 
without any intention of doing so. We are to ascertain the facts from the 
mass of evidence, and judge of each witness' competency by contrasting his 
evidence by that of others, and when it agrees with all or a majority of the 
witnesses, we may safely infer he is right. I endeavored yesterday to examine 
the facts that occurred at the tailor's shop, for the purpose of showing the 
ill blood fomented in these gentlemen's hearts against Redding. I then 
showed that they acted in concert, and provided themselves with what 
weapons they could, not being able to get all they wanted ; and how, upon 
a small occasion, they were prepared to use these weapons. Indeed, there 
seems to be no witness as to what occurred when Judge Wilkinson remained 
in consultation with his companions in his bed-room. 

" (Here Mr. Hardin made a short recapitulation of the statement he had 
gone over before, so nearly alike in substance that it is conceived unneces- 
sary here to repeat it. However, some of these points elicited observations 
from Mr. Hardin, new or important, which it may be necessary to give. The 
repetition of such points of evidence will be excused.) 



^ I2 BEN HARDIN. 

"We may judge of the shifts the defense is driven to, when it is 
forced to rest upon such witnesses as Oliver, a man whom no one in Louis- 
ville would listen to; and Jackson, the Pharisee, who talks of religion with- 
out a spark of it in his heart, and who is discredited by men who, as wit- 
nesses, are unimpeached. 

■•It" Judge Wilkinson, Dr. Wilkinson, and Mr. Murdaugh were known 
to be frequenters of the bar before meal times, why has it not been proved by 
one of their witnesses ? That not being proven, I have a right to assume 
it could not be done, because it was not the fact. 

• Next I have to ask, why these gentlemen come into the bar-room pro- 
vided with arms? Could it be with any other design than to run Redding 
out of the room ? Were they going into a room where they commonly 
resorted? It is evident they were not. Did they go there on their way to 
supper ? It is evident they did not, for supper was not near being ready. 
"What disposition for eating a supper merely does it show in Judge 
Wilkinson to pace the room three or four times, and then fix the eye of 
destruction on Redding, while his purpose kindles, and he grasps his bowie- 
knife behind in his pocket ? What more eagerness for supper does Murdaugh 
exhibit in going straight up to Redding, rattling like a viper, and charging 
him with being a liar? Sir, I care not if a man go into any crowd, and, 
before an angry word is used to him, he goes up to as meek a man as Job 

himself, and says, 'You are a d d liar, or rascal,' and flings open his 

Made to inflict mortal injury, as his words indicate, if the person so accosted 
strike his insulter, it is not surely any great wonder. And yet Redding did 
not strike a blow. Mr. Murdaugh may say, 'I kept within what I thought 
was the safe side of the law— I approached with my drawn knife— insulted 
the person to draw on the attack from him, that I might have some excuse 
for using my knife in the manner in which I came to use it at any rate.' 

If any man come up and call you a d d liar, or a rascal, and spring 

open his knife in the attitude of striking, should you strike or slay such an 
assailant, would you not be excusable? But Colonel Robertson attributes 
to acts of this kind nothing but a manifestation of innocence and high spirit. 
The colonel is really a gallant man, and judges of others by the fire and 
chivalry raging in his own breast. You must not laugh, gentlemen, for if 
jrou could look upon the volcanic mountain, though you would see its head 
■ ipped with snow, you would find its bosom, like his, rumbling with fire, 
smoke, and brimstone. In former times, the highest honor known to a 
Roman soldier was to have saved a man in battle, but here it is argued that 
if a young aspirant to fame pinks and kills his man, he is to be sent home to 
his parents in honor, crowned with the chaplets of victory. Nay, it is 
believed if Bonaparte, in his youthful prime, in his Italian campaigns, had 
had Murdaugh by his side, he would have confided to his ready and unerring 
arm the execution of many a hard adventure. Colonel Robertson may say 



SPEECH IN THE WILKINSON CASE. 



3*1 






what he pleases, but I say it was Murdaugh commenced the assault, and 
that all fighting done by him was in the wrong. All fighting done on his 
account was in the wrong, because he had commenced in the wrong. 

"Well, gentlemen, as I remarked to you yesterday when I stopped for 
I am now returning once more to that point— Murdaugh had given the firs! 
provocation, had killed his man, and stabbed another to the death, when 
Judge Wilkinson stepped up and gave Rothwell a stab in the back, . 
engaged with and probably receiving the stab in the chest from Murdaugh. 
Yes, gentlemen, a third man comes up and lunges this beautiful little W( 
into Rothwell's side, and starts back! Sir, if men are engaged with deadly 
weapons, part them if you can, but do not come up behind them and lunge 
a bowie-knife into the vitals of one, and then come into a public court and 
demand it not only to acquit you, but to do it with shouts of 'Glory, glory, 
go, go!' And yet, gentlemen, this is the polite invitation given to you by 
Mr. Prentiss, to acquit such a man with acclamation. When engaged with 
a man who has only a cane no bigger than his thumb, his opponent gives that 
man a deadly stab in the chest which paralyzes his arm — a third person — 
Judge Wilkinson, for instance — comes up behind and stabs the paralyzed 
man in the back, it is, no doubt, high time for you to be called upon to 
mark your approval of the deed by shouts of acclamation? Mr. Prentiss. 
by the way of winning your favor by complimentary allusions, thinks Ken- 
tucky should no longer be called the 'bloody ground,' because the river 
Raisin has carried off the palm in feats of human butchery. But I think the 
Mississippi gentlemen, of Vicksburg, have bidden fair of late to obtain for 
that part of Louisiana opposite their city the palm of being the 'dark and 
bloody ground.' I suppose, in the far-famed Menifee duel with rifles, if 
some one had stepped up and lunged a bowie-knife into the vitals of one of 
the combatants, the shouts of acclamation that would have arisen in that 
quarter of the world would have resounded to the very uttermost ends of the 
earth. 

"Dr. Wilkinson, by this time, became engaged with Holmes. Holmes 
is a stout and large man, but his size has been greatly exaggerated. Like 
the Patagonians, the first discoverers thought them ten feet in height ; the 
next voyagers only eight, and the next but six. I recollect of reading of 
Captain Smith, that when he first explored the interior of this country, on 
his return he represented the inhabitants as all Goliaths, six cubits and a span 
in height. Yet, subsequently, more matter-of-fact men found they were 
only miserable and cowering Indians of ordinary dimensions. In this man- 
ner appearances are magnified. 

" We are asked why Holmes is not here ? We echo to the other side. 
' Why is Holmes not here ?' Our answer is, because he was not to be had. 
being a pilot down the river, and not within the control of the State's attor- 
ney or any process issuing from him. 



314 BEN HARDIN. 

■■ Mr. Trabue proves that Holmes knocked Dr. Wilkinson against him, 
and that Holmes followed up his blow and knocked the doctor down. 
Another witness proves that Dr. Wilkinson had his knife in his hand on the 
floor, and Redding proves that he found the knife on the floor, and it had 
blood on it. We have, then, evidence that all three were using their knives 
for the shedding of blood. Sir, among other appeals made to you for acquit- 
ting them, you are told, as a set-off, that there is no State in the Union on 
which you are more dependent than that of Mississippi. They take their 
cotton South and receive, either through shipping agents or drafts direct, 
their money for it from the merchants of Great Britain. True, Kentucky 
gets some of these dollars from the Mississippians for what they think better 
than their money, or their produce, or they would not buy it. We, in the 
rounds of trade, pay these dollars, or what represents them, to the Liver 
pool merchants for merchandise that we think better than the money. The 
Liverpool merchants in the next turn of the wheel pay the same dollars back 
to the Mississippians for their raw cotton, and the Mississippians are nothing 
loth to take our produce again for the same dollars. And after several 
twists of this kind, when we get them back and recognize one of them as an 
old acquaintance, we may say, ' How do you do, friend dollar, I am very 
glad to see the face of an old acquaintance ; step into my pocket and warm 
yourself; I always give shelter to a traveling friend.' We are proverbially a 
hospitable people, and never refuse a night's lodging to a dollar or its liberty 
to travel further next day upon leaving us an equivalent for what we lent it. 
I Jut, to be serious, are we not all dependent on each other? I know this, 
and can not admit that we owe more to Mississippi than Mississippi owes to 
Kentucky; and why there should, in this case, be made any parade about 
our indebtedness to that State, not founded in reality, is for you, gentlemen, 
to weigh. 

" To resume the facts of this case, what does Judge Wilkinson do ? He 
stabs Holmes in the arm; but he is not indicted for that. He stabs Roth- 
well, when he is engaged with Murdaugh, in the right-hand corner ; and 
again, when in the left-hand corner, standing over Holmes, and trying to 
get him off his brother. Rothwell has been disabled by two stabs. Judge 
Wilkinson, standing at the dining-room door, when Rothwell was saying 
nothing except in mercy trying to persuade Holmes to spare Dr. Wilkinson, 
comes across the room to the opposite door, finds RothwelFs back turned 
to him, and then makes the last and second thrust of the bowie-knife into 
his victim's back. Mr. Robert Pope says : ' I saw Rothwell's back to Judge 
Wilkinson, when the judge stabbed him up to the very handle.' I ask you, 
gentlemen, I speak to you not in language other than broad and naked truth, 
is there any witness denies this? Every one that knows Robert Pope knows 
that he would not state what he did not know to be a fact. We know that 
each and all these wounds contributed to Rothwell's death. The last 



SPEECH IN THE WILKINSON CASE. 

stab is given by Judge Wilkinson to Rothwell, Dr. Wilkinson and Mur- 
daugh retreat out into the passage, and fight their way to the foot of the 
stairs. I care not what was done there; it was done after the offense pre- 
viously committed. Suppose Oldham had shot one of them, and not missed 
as he did; suppose Murdaugh had been knocked down ; and suppose fudge 
Wilkinson received blows in the passage; does it lighten the offense previ- 
ously committed? I care not what took place when a man has killed 
another. When making his escape, I care not now many guns are fired at 
him, how many rocks thrown, because it alters not his previous offense, 

'•If there is any evidence that any one in the bar-room laid a hand on 
Judge Wilkinson — who has proved it? Is it not plain that any bruise 
injuries he did receive were received in the passage ? 

"Mr. Prentiss said he was willing to stack arms with the Kentuckians. 
What arms had they? They had a cowhide whip. We hear of a cane, 
which he thinks may be conjured into a sword-cane. Mr. Holmes, indeed, 
had his fists, but he could not stack them. We are told that Oldham had 
arms, by a witness who viewed the scene from the outside of a window, like 
one of the venerable birds perched on a dry limb eyeing the slaughter with 
a prospective instinct — one of those remarkable birds renowned alike for their 
gravity and great stillness. We have heard a good deal said, and well said, 
if true, about Oldham; that he was unsteady; that he cast his eye on his 
counsel for relief. Yet we really saw nothing in his conduct -to warrant his 
being called perjurer, scoundrel, coward, and rascal; and here I must remark 
that this very talented young gentleman, Mr. Prentiss, in using such epithets 
to a witness without a shadow of justness in the application warranted me 
in saying that though I admired some passages in his speech, yet others I 
should feel bound to denounce as unworthy alike of his profession and of his 
character. 

" No man in this State can boast of a prouder ancestry than that very 
Oldham, whom it has been attempted to brand as odious and infamous. 
They have been among the earliest settlers and esteemed of our citizens, 
trusted with command in our army, and venerated on the judicial bench. 
And has a man sprung from such honored stock no pride in upholding his 
name, no feelings to rouse his indignation when epithets as gross as they are 
groundless are poured out to tarnish his reputation, for the paltry purpose of 
influencing a jury to discredit his testimony, and to warp their judgments 
from the straightforward path of truth and justice. 

" What proof has Mr. Prentiss to sustain the course he has taken ? Sir. 
there is no shade of proof. The gentleman is indebted to the fertility of 
his fancy, and his best friends must regret that he has not. in this instant e, 
cultivated that productive soil for some more praiseworthy object than an 
ignoble and disgraceful crop of baneful, destructive, and loathsome weeds. 
Does the gentleman think he is one of the angels appointed to pour out the 



3 l6 BEN HARDIN. 

vials of wrath ? Has he not indulged in pouring out gratuitously his vials 
of wrath on Mr. Redding, who could not escape ? Redding is stigmatized 
as a murderer, to be haunted by the ghost of the slain at his nightly couch. 
Yet, what was his offense ? He raised his arm to ward off the blow of an 
iron poker aimed at him by Judge Wilkinson. He has profaned a judge's 
person on this trifling provocation by seizing him, dragging him to the door, 
and turning him under. ' Oh, you scoundrel ! ' would Mr. Prentiss exclaim, 
' why did you do that ? ' He had retorted upon Judge Wilkinson when 
taunted by him about his profession ; and, worse than all, he did not, when 
the killing was going on, stay in some convenient place to be killed. ' Why 
did you not, you coward, rascal, murderer, perjurer, and so forth, turn your 
back to be stabbed with safety ? Why did you not stand up with your face 
to the breeze when the sirocco swept along, carrying death on its pinions? 
Why did you fall on your face, and let the pestilential blast pass over you ? 
Why did you not breathe until it was gone? You and your friends have 
offended us by your want of submission, and now you aggravate your offense 
by coming here to testify against us.' 

"Really, it is astonishing they are yet alive ! But it will be more aston- 
ishing, perhaps, when it is told that they will return to Louisville, and there 
stand, in point of reputation, just as they stood before these slanders were 
concocted, digested, and spewed upon them. It will turn out that they are 
yet unpolluted and unscathed. The same protecting Providence which 
carried the Israelites through the Red Sea will protect even these persecuted 
and wronged few. 

"Gentlemen, I have endeavored to trace facts, as far as I have gone, 
with minuteness, and, having presented these facts to you, it is for you to 
determine whether they do establish these conclusions. When the fight 
occurred in the bar-room, it was brought on by these gentlemen intention- 
ally. If they brought it on, did they fight in their own defense, or because 
they had drawn the conflict on themselves? Could Meeks have inflicted 
death with a cowhide, or Rothwell with a walking-stick, so as to render 
tin- killing of them necessary or justifiable according to the true spirit of the 
law ? 

" But here there is a proposition of law advanced by Mr. Prentiss which 
I must combat. He says that the law recognizes that the point of resistance 
unto death begins where a man himself believes the point of danger ought 
to he fixed. Then, we have no law at all — we may burn up our law books ; 
this revokes all they contain on the subject of homicide. There are two 
men engaged in a quarrel, one as brave as Caesar, the other as timid as a 
hare; one kills the other, when the quarrel has arrived at a certain point. 
The brave man, if he were a Marshal Ney in courage, is to be hanged, 
because lie had no fear of his life when he killed his adversary. If the 
timid man is the survivor, he is to be acquitted with acclamation, because 



SPEECH IN THE WILKINSON CASE. 317 

of his cowardice, which made him imagine danger where there was Done. 
Thus cowardness and rashness are to be rewarded and < herished, 
bravery and forbearance punished with an ignominious death. Is it pos- 
sible you, an intelligent jury, can be imposed upon by sui h sophistry ? Is 
there so low an estimate of your understandings as to suppose it? 

"A is tried and acquitted, because he is a base coward, and apprehends 
danger at a point where there was no danger at all. 15 is tried for precisely 
a similar homicide in every particular, and because he is not quite as big 
a coward as A, but apprehends some danger, is to be found guilty, and sent 
to the penitentiary for a term of years proportionate in duration to his la< k. 
of cowardice as contrasted with A. C, for precisely a similar homicide, be- 
cause he is incapable of fear, is to be convicted of murder, and straightway 
hanged ! 

"(Here Mr. Prentiss interrupted Mr. Hardin, and explained, in sub- 
stance, as before.) 

" It makes no difference; the same principle is involved. 

" I knew that I should have to combat this very principle the moment I 
saw the hack driving into town with a head peeping out of the window, 
which head I knew belonged to the shoulders of a certain gentleman from 
Mississippi. When I was in Vicksburg, I asked a gentleman how it was that 
Mr. Prentiss defended so successfully so many notorious murderers, who 
really merited the gallows ? ' O,' said he, ' he has hit upon a principle which 
he calls law, that charms every jury to which it is addressed.' I asked the 
gentleman to repeat the magical words to me. He did so. It was the very 
principle I have been combating. It is possible that as the gentleman 
afflicted with this chronic principle, which he belches up with so much advan- 
tage to himself and relief to others, is now in the neighborhood of Medical 
Springs, esteemed so potent by Mississippians, he may resuscitate, by a 
few drinks of the charming water, a sophism which I have shown to be no 
longer tenable by any one who values what is healthy and sound above that 
which is merely delusive. 

" Sir, the principle of self-defense does not warrant a man in killing 
under the name of self-defense, if he is himself in fault by being the 
aggressor. 

" Is the principle of self-defense among nations to be carried into effect 
as justly applicable to the right of self-defense among individuals? In 
national controversy, the law of nations, an imaginary code of mutual con- 
venience, is referred to according to the custom of the country, but in a con- 
flict between individuals there is a defined law which must be the redresser. 
A nation with right and justice on her side may be conquered by another 
nation in the wrong, and can not sue for or obtain redress from 'he wrong- 
doer; but an individual, in a community, may be wronged by another and 
can obtain redress, because he has the law common to both, and a superior 



3 I S BEN HARDIN. 

power to appeal to. Therefore, there can be no dependent analogy between 
the laws of nations and the laws of individual communities. There wa? 
some crude idea thrown out yesterday that the laws of Great Britain ough'. 
not to be enforced here. We are not to be told at this day that we have any 
other common law than that derived from the common law of England. 
The very principles of our statutory laws are dictated by the genius of Eng- 
lish common and statutory law, with the exception of such local differences 
as require local application of principles. If the gentleman could take from 
us the right to apply the law of England where it would be in point for us, 
we could, by reciprocity, deprive them of any they might most rely upon. 
Where, then, is the advantage of raising such an objection? But it is quite 
unnecessary to dwell on this point. 

" I shall now advert to the peculiar necessity enforced upon us of becoming 
a law-abiding people, if we would preserve any regard for our present form 
of government and constitution. In empires, monarchies, and kingly govern- 
ments, armies are formed to keep the people in order; but in a republic, 
what could preserve the social compact but the law ? The moment you dis- 
solve or dispense with the law, that moment you dissolve our national consti- 
tution. Every government, and most especially a republican government, is 
bound to protect each citizen in his property, reputation, and life. How can 
a republican government do it, but by and through the law rigidly and justly 
administered? Whenever you dispense with the law, you allow men to arm 
themselves and to become their own avengers, independent of and above all 
law. When they are not only permitted to do so, but to return home as inno- 
cent men, what is the effect? Every man will arm himself, and, like the 
turbulent and the licensed armed mobs at the fall of the Roman republic, 
brutal violence will reign instead of law. All government will be dissolved, 
and anarchy and confusion will pave the way to usurpation and tyranny. 
You must venerate the law if you would not see such a state of things. If 
you do not, A and B will arm themselves, like the Turk, up to the throat, 
and kill whom they please out of mere wantonness and sport. 

"If you go into the Northern States, it is a rare thing that you can find a 
man in ten thousand with a deadly weapon on his person. Go into other 
States that shall be nameless, and you will hear of them as often as of corn- 
shuckings in an Indian summer. Go further South — to Arkansas or Missis- 
sippi, for instance — and though you would be a peaceable man, shuddering 
at the name of a ' tooth-pick ' in the North, in these States you may arm 
yourself to the teeth, and track your steps in blood with impunity. Why is 
this, but from the relaxation of the laws that are elsewhere enforced and 
obeyed ? 

'I was down the river lately, and it was pointed out to me where the 
Bla< k Hawk had blown up and killed her scores; to another place where 
the General Brown had blown up and killed her hundreds ; to one spot on 



SPEECH IN THE WILKINSON CASE. 319 

the shore where two gentlemen blew each other's brains out with rifles; to 
another, where the widow somebody's overseer was butchered; to another. 
where the keeper of a wood-yard was shot for asking pa) for Ins wood ; 10 
another, where an aged gentleman had his guts ripped out for protecting his 
slaves from cruel treatment. 'Great God!' cried I, at last, 'take me ba< k '. 
take me back to where there is more law though less money;' tor I could 
not stand the horrid recital any longer, when every jutting point or retiril 
bend bore the landmark of assassination and irresponsible murder. 

"Why does the law call for punishment? Surely it is not in vengeance 
for the past, but to deter others from the too frequent and free use of deadly 
weapons, whether in Kentucky, Louisiana, Mississippi, or Arkansas. Is it 
to be left to the vitiated taste of the brutal few to give tone to the mind of a 
community in setting up the code of the bowie-knife against the common 
law? It was but the other day that in the Legislature of Arkansas, a mem- 
ber on the floor was a little disorderly, and the speaker, to keep quietness, 
stepped down, brandishing his bowie-knife, to silence the ardor of the unruly 
member, which he did effectually; for, of all the ways in the world of put- 
ting down a young and aspiring politician, whose tongue will keep wagging 
in spite of his teeth, your bowie-knife is, I admit, the most effectual. And 
the speaker, on this occasion, bent upon having silence, silenced the offender, 
not only then, but for all time to come. To be sure, he went through the 
form of a court of inquiry, but a life is only a small matter there, and he 
was acquitted according to the laws of the State. 

" ' Coming events cast their shadows before,' and here we have one symp- 
tom of the downfall of our glorious Republic, which has been so often pre- 
dicted, but which has been reserved for the present generation to consummate. 
The symptom is to be found in the flash of those deadly weapons carried 
about and used with such unerring fatality by our legislative sages and 
judicial dignitaries. As if the next should come from high places, too, we 
have a fatal symptom of our downfall furnished by the corruption of those 
in office, who share in or connive at the grossest defalcation — the widest 
system of public plunder, even in our monetary defalcations, ever known in 
any government. 

" Why should we deceive ourselves with the vain hope that our Republic 
will boast greater permanency than that of Rome, when we are fast falling 
into the very track, step by step, which leads to the precipice over which she 
plunged headlong? That once magnificent mistress of the world, march- 
ing up the hill of fame and glory with irresistible strides, till she at last 
reached the summit, and looked around upon the hundred nations in her 
rule. But, at last, satisfied with prosperity, she began to repose supinely 
upon her laurels, and she permitted herself gradually to relax that discipline 
and good order which had been to her not only her shield and buckler, but 
her bond of union. The people were permitted to fight in twos and thn 



320 



BEN HARDIN. 



at fust, with impunity. They became accustomed to it, and then fought 
without interruption in gangs; by and by, mobs fought with mobs; and, 
finally, the whole people became arrayed against each other in regular 
armies, till they had to retire to the plains of Pharsalia, where the doom of 
the greatest republic the world had ever known was sealed forever. 

•• Are we not relaxing the laws — which leads to anarchy, and from per- 
sonal violence to popular usurpation? Are we not relaxing our financial 

] lance — which leads to corruption at the fountain head, and from private 
peculation to public defalcation ? Is there no symptom in all this of a 
great crisis? I tell you again and again, when you can lay your hands on 
great delinquents, make them an example; when you can grasp great 
defaulters, punish them ; then will you more easily check pernicious dis- 
cords, and restore to its proper tension and tone the harmonizing power of 
your laws and your government. Whenever you see men wearing bowie- 
knives and daggers — hunt them down as you would bears and their cubs, 
from whom you can expect nothing but injury. The whole State of Ken- 
tucky looks to you this day for justice, for this is an awful investigation 
concerning the loss of two of her citizens. Two of our fellow-citizens have 
been murdered, and these gentlemen stand here to answer for it. Some of 
the best blood of the country has been spilled as if in the pen of slaugh- 
tered hogs ; but because the relatives of one of these butchered men employ 
counsel to aid in the prosecution in developing the truth and guarding 
against the delusions of sophistry from the greatest array of talent the coun- 
try can boast, or that wealth unbounded can procure, to elude the punish- 
ment due to the offended laws, you are told to take but a one-sided view of 
the evidence, and decide, at any rate, against the paid advocate. I have 
not asked these gentlemen what they are to be paid for eluding justice, 
because I did not consider that a sort of evidence which ought to influence 
your verdict. 

"Gentlemen, one question is, are we to tolerate this bowie-knife system 
under the pretense of self defense? I say, let your verdict act like the ax 
laid at the root of the tree, and many a prayer will bless you for your timely 
check of its growth. Many a woman is made a mourning widow, many a 
child made a pitiable orphan, and many a father childless by the use of this 
accursed weapon. You have it in your power to prevent the recurrence of 
such scenes. 

"We have had an exhibition here in miniature of those Roman scenes 
which prepared the public mind for the downfall of that great people. There 
was a vast amphitheater where the Roman people could be crowded together, 
and, in the presence of some hundred thousand persons of both sexes, a man 
would be brought into the arena and a ferocious tiger turned in upon him. 
He might or he might not possess skill or courage to meet the formidable 
beast and evade the deadly spring ; but, if not so fortunate, when the tear- 



SPEECH IN THE WILKINSON" CASE. 32 1 

ing of his vitals were seen, and the craunching of his bones heard, the soli- 
tary shriek of the victim's wife, as it arose upon the air, would instantly be 
drowned by the acclamations and thunders of applause bestowed upon the 
ferocious beast, prolonged by its renewed efforts to suck the blood, tear the 
flesh, and grind the bones of its prey. As we have no amphitheater, a hall 
of justice is made to answer for a miniature arena ; and as we can not have 
tigers, nor men who will submit to be their victims, we have forensic gladi- 
ators, and witnesses whose private feelings and characters may be wounded, 
lacerated, and tortured to the infinite delight and encouraging shouts and 
plaudits of a fashionable auditory, while the victim is helpless and gloomy in 
his unmerited prostration. Yes, it is all for the amusement of enlightened 
minds, and it is intended, perhaps, for the edification of the rising genera- 
tion. But, I protest, I can not perceive that it is any more for the honor of 
the applauders than it is necessary for the good of the country that the 
gentlemen should be honored and glorified for their dexterity in the use of 
the bowie-knife and dirk. 

" In the time of public danger or foreign invasion, is it these bowie- 
knife gentrv, these pistol men in private life, that mount the breach and 
face the danger? Are they the brother Jonathans that face John Bull and 
eye him and his scarlet coats with defiance ? Where are they, then ? Why. 
like the gnats and mosquitoes, who glisten in the sunshine and calm, but, 
when the storm rages, and the thunder growls, and the lightning Hashes, 
and the earth is rocked to its center, they are stowed away from the danger, 
though they are sure to emerge from their hiding-place to annoy with their 
stings when the succeeding calm and sunshine invite them out once more. 
Brave men may be voluptuous and effeminate in private life, but. in the 
hour of danger, they put on a new nature. But these fighters in time of 
peace clothe themselves in the skin of the lamb in time of war. Sardan- 
apalus, who sat all the while with his women and eunuchs in times of peace, 
spinning and knitting, and telling long stories, no doubt, and sometimes 
wearing petticoats to make himself more effeminate, when conspired against 
by Belesis and Arsaces, gave up his voluptuousness, and, at the head of his 
army, gained three renowned battles, and, though beaten and besieged at 
last in the city of Ninus, to disappoint his enemies, burned himself, his 
eunuchs, and his concubines, with his palace and all his treasures. Alex- 
ander the Great, who was kind and courteous, familiar and confiding with 
his officers in private life, when leading the Macedonians, moved to bank- 
like a pillar of fire, irresistible in his might. When the great Frederick led 
on his brave Prussians, they fought and fell and fought and fell, as long as 
any were left. And thus men imbibe the spirit of their chief. If led by a 
brave man, they are brave ; but, if led by a coward, they are poltroons ; 
and, if led by the bowie-knife and pistol gentry, I make no doubt that they 
would be either assassins, or nothing better than mosquitoes, to be dispers 

21 



322 



BEN HARDIN. 



by the first report of the cannon. Even at home, in our own rural dis- 
tricts, we see the influence of leading men on whole neighborhoods. Let a 
virtuous and enlightened man, whom all will look up to as a pattern, settle 
in your neighborhood, and every one will partake of his good influence. 

"Why was it that Nelson, in his death, did more for the glory of his 
country than he ever did in his life ? Because he ascended to heaven in the 
arms of victory, like Elijah, who tasted not of death. 

" Let us never dream of selecting for our leaders or examples those who 
have so little moral courage as to trust to bowie-knives and pistols for the 
preservation of their manhood, instead of to their blameless conduct in peace 
and bravery in war. 

" Gentlemen, 1 beg of you, in the name of Him who sits upon the cloud 
and rides upon the storm, mete out the measure of justice to these men and 
vindicate the honor of Mercer county. But do not stigmatize your county 
l>v doing, as Mr. Prentiss would have you to do, by shouting ' Glory! glory! 
go, ye righteous ; go to your homes in honor and innocence.' Whatever you 
may do, I shall content myself with the conviction that, in my professional 
capacity, I, at least, have done my duty. 

" I have been deputed by the widowed mother of the murdered Rothwell, 
and at the instance of his mourning sisters, to implore your justice. I have 
closed my mission. Between you and your country, between you and your 
God, 1 leave their cause." 

The following interesting reference to the argument is from the pen 
of Dr. C. C. Graham, who witnessed the trial : 

"Judge Rowan (who, by the way, read his speech to the jury from the 
manuscript) from age let down, and so did Colonel Robertson. Mr. Har- 
din, though of the same age, retained all the memory and vigor of mind for 
which he was so remarkable, and forced upon the jury all the convicting law 
that ever was written, and, like a bull-dog, clinching his fangs upon every 
vulnerable point, making all that any mortal man could out of the case. At 
the close of his powerful argument whispers were heard all around, ' The 
jury is bound to convict.' " 

Judge Rowan followed Mr. Hardin, and Mr. Bullock concluded the 
argument. The jury retired for the space of fifteen minutes, and at 
the end of that interval returned into court with a verdict acquitting 
all the defendants. 

With the mass of those who heard the trial, the speech of Prentiss 
undoubtedly bore the palm. Yet the late Dr. John C. Young, the 
accomplished President of Centre College, was present, and not a few 
would prefer his discriminating judgment to the thoughtless plau- 
dits of the multitude. He said that " Prentiss furnished the tinsel 



RECOMPENSE OF INHOSPITALITY. 323 

while Hardin supplied the bullion of the argument." Shields, the 
biographer of Prentiss, characterized the speech as Hardin's " great- 
est effort." Rowan spoke of it as being " as remarkable for vigor of 
intellect as for vehemence and impassioned zeal." 

The citizens of Harrodsburg had been in warm sympathy with the 
Wilkinson party. That sympathy deprived Mr. Hardin during the 
trial of those courteous attentions which his age and reputation 
entitled him to expect. Prentiss was the hero of the hour. 

Hospitality turned her "cold shoulder" to Hardin. He smarted 
under the studied neglect with which he was treated. Mounting his 
old gray horse in front of the hotel to start home after the trial, he 
dropped an observation to an unsympathetic crowd standing by which 
was afterward remembered with bitterness of soul in that corpora- 
tion. Mercer county (of which Harrodsburg was the seat of justice) 
then embraced the town of Danville, and the rich and fertile territory 
subsequently included in Boyle county. Danville had long sought to 
establish a new county, which Harrodsburg had vigorously opposed. 
It so happened at that time that Mr. Hardin had two influential sons- 
in-law in the Legislature. 

'Twill see," said he, reining up his horse, "I will see that John 
Helm and Dr. Palmer run a stake and ridered fence between here and 
Danville." In performance of that threat or fulfillment of that 
prophecy it so happened that in a year or so afterward the Legislature 
carved the county of Boyle from the very heart of Mercer. ::: 

*Judge Wilkinson died in i860, and side by side in the Roman Catholic cemetery at Bardstown lie 
and his wife sleep well " after life's fitful fever." 



3 2 4 



BEN HARDIN. 



CHAPTER XXIII. 

SOME CELEBRATED CASES. 

IN the course of his long and busy career, Mr. Hardin was employed 
in many cases that might with propriety — on account of their char- 
acter, the questions involved, the array of counsel, or the importance 
of their results — be set down in this chapter. These cases, taken 
together, involved well nigh every question usually litigated in tribu- 
nals removed from the seaboard, where maritime interests are in 
question. 

Land law, commercial law, constitutional law, criminal law, etc., 
were some of the subjects daily investigated and expounded by him 
in the course of practice. The reports of decisions of the Court of 
Appeals of Kentucky not only show him to have been a regular prac- 
titioner before that tribunal, but many of the cases very entertainingly 
illustrate his skillful, diligent, and profound lawyership. But these 
cases can not be even enumerated here. As a specimen the curious 
reader will find the case of Rust against Larue, etc., reported in 4 
Littell's Kentucky Reports, page 41 1, interesting and instructive. In 
a petition for rehearing, Mr. Hardin examines and discusses very 
exhaustively, and forcibly combats that phase of the doctrine of champ- 
erty, which avoids contracts between client and attorney, by which the 
latter is to receive part of the matter in controversy for his compen- 
sation. 

It is not intended, however, to even allude to the many noted cases 
in which he was engaged from time to time. Four of these, dissimi- 
lar in character, have been selected, in each of which he was leading 
counsel, and in all of which he distinguished himself for lawyership. 
A brief sketch of each will be given. 

Green vs. Biddle. Supreme Court of United States. 

This action arose in Kentucky about 1820. Green sought to 
recover certain lands occupied by Biddle, and the latter, claiming for 
improvements, the constitutionality of two acts of the Legislature 
was drawn in question. The acts referred to were passed in 1797 and 
in 1812 respectively and were intended for the protection of occupy- 



GREEN VS. BIDDLE. 



325 



ing claimants of lands under a title of record, when ousted by superior 
title. It was provided that in case of eviction the tenant should not 
only be entitled to recover the value of all improvements placed upon 
the land, but should only answer for rent from the time he had notice 
of the superior title. Mr. Hardin was of counsel for Green. II, 
denied the constitutionality of the laws in question because in contra- 
vention of the " Compact with Virginia." 

This "compact" was part of the first, as it has been of the second 
and third Constitutions since adopted in Kentucky, and in effect pro- 
vided "that all the rights derived from Virginia prior to separation 
should continue valid and be governed by the laws then existing in 
that State.'" 

Green derived his title from Virginia prior to 1792, and claimed 
that his rights — being secured by the "compact "—could not be taken 
away or diminished by the "occupying claimant" laws above alluded 
to. The case began in the federal circuit for Kentucky — the judges 
of which divided, equally on the aforenamed constitutional questions ; 
it was carried to the Supreme Court. It was first argued at the 
February term, 1821, by Mr. Talbott and Mr. Hardin for Green, no 
counsel appearing for Biddle. Justice Story delivered the opinion o( 
the court holding the occupying claimant law unconstitutional. After 
this decision was pronounced, Mr. Clay, as amicus curia, moved a 
rehearing on the ground that but one side had been represented by 
counsel, and that the question involved was vital to many citizens of 
Kentucky. The motion was granted and the case continued until 
another term. Meantime, the Legislature of Kentucky, regarding 
the question of public interest, employed Mr. Clay and Judge llibb 
to maintain the constitutionality of the disputed law. 

In 1823 the case was again argued before the Supreme Court by 
Mr. Hardin and Mr. Montgomery for Green, and by Messrs. Clay 
and Bibb contra. The briefs of counsel are published with the report 
of the case, and are very elaborate.* Mr. Justice Washington deliv- 
ered the opinion of the court, Mr. Justice Johnson delivering a sepa- 
rate opinion. Both concurred in the decision previously pronounced. 
The court, in reply to the point of Mr. Clay that the "compact" was 
not binding because not ratified by Congress, held otherwise, declar- 
ing that it was a contract between the two States and was valid as 
such. 

Messrs. Clay and Bibb received a fee of four thousand dollars from 
the State treasury for their services. Mr. Hardin argued the ca- 

''"See 8 Wheaton, page 547. 



326 



BEN HARDIN. 



orally. Governor Pope, himself a most excellent lawyer, was pres- 
ent, and pronounced Mr. Hardin's one of the finest legal arguments 
to which he had ever listened, saying it was as pure and clear as an 
icicle, and quite a contrast in that respect to some of his jury speeches. 
Judge Rowan and Mr. Clay sought still another rehearing, but it was 
denied. 

At the period (shortly after this decision) when the Legislature was 
denouncing and preparing to overthrow the Court of Appeals for hold- 
ing the relief law unconstitutional, the latter as well as the Supreme 
Court of the United States received the following euphonious rebuke 
in a preamble to certain resolutions offered in the Legislature, evi- 
dently the composition of Judge Rowan: 

"The Appellate Court of the nation and State (by consentaneous impulse), 
as if in the view to exemplify the illusive nature of hope and the fallacy of 
the fairest prospects, uttered their respective edicts. The former proclaimed 
that the State of Kentucky possessed no legislative dominion over its soil ; 
the latter, that the Legislature of the State possessed no power to alter, amend, 
or modify its remedial laws. The former having disfranchised the State and 
reduced it to the degraded posture of a province of Virginia, the latter denies 
to it even provincial legislative powers." 

It is proper to mention in this connection that so far from the State . 
being reduced " to the degrading posture of a province of Virginia," 
its sovereignty was vindicated in the most emphatic manner. When 
the mandate of the Supreme Court was offered to be filed in the Court 
of Appeals, the latter tribunal refused to allow it. It was disregarded 
there, and so the constitutionality of the occupying claimant laws was 
happily (although somewhat uniquely) placed beyond all cavil or 
question ; and, moreover, demonstration was given of how infinitely 
superior in majesty is the court of a sovereign State to that of a gov- 
ernment exercising mere delegated powers. 

In that great controversy in Kentucky, known as the " old and new 
court contest," which raged with great fury from 1823 to 1825, the 
New Court party, in the expressive vernacular of the legal profession, 
pleaded the decision in Green against Biddle "in aggravation of dam- 
ages." But it was a circumstance that hastened the overthrow of that 
part}', that it had undertaken to condemn in popular opinion not only 
the Court of Appeals, when John Boyle was its chief-justice, but also 
to bring to obloquy the Supreme Court of the United States, when 
that greatest of all American jurists, John Marshall, adorned that 
high tribunal. 



a celebrated case. 327 

Deparcq vs. Rice, Libel, Nelson Circuit Court. 

Few cases ever produced more excitement, or attracted more wide- 
spread interest, than that of Deparcq against Rice, tried in [836. In 
1858 the following statement was published by Dr. Rice, in the Pres- 
byterian Expositor, as to the origin of the law-suit, which he entitled 
"The Mysterious Disappearance: " 

" Some twenty years ago, a young woman, the daughter of Roman Cath- 
olic parents, entered a nunnery not far from Bardstown, Kentucky. She 
at first entered as a pupil, but after some time she was induced to take 
the veil, and entered upon what was regarded as a religious life. After she 
had been from twelve months to two years in, perhaps, two nunneries, she 
suddenly threw off her religious habit, and returned to her father's house. 
This unexpected step surprised her parents, and they demanded her reasons 
for abandoning the convent. Knowing their superstitious veneration for 
the priesthood, she hesitated to reveal her reasons, unless in the presence of 
some two Protestant neighbors. This her father refused to permit, and 
sent for a married son and his wife, who were not more intelligent than him- 
self, and were equally bigoted. The daughter stated as her reasons for 
leaving the nunnery, the licentious conduct of the presiding priest, and the 
prevalence of corruption in the institution. When she entered the convent, 
she regarded it as the gate of heaven ; now, she viewed it as the gate of 
hell. 

"These statements, so far from satisfying her superstitious relatives, 
excited their highest displeasure, and, discovering that she was likely to be 
roughly handled, she fled to the house of an aged Baptist minister about a 
mile distant. From childhood she had known him and his family. I 
them she related her story, and begged their protection. She desired to 
state the facts under oath, and the minister prevailed upon a neighboring 
magistrate to go to his house and hear what she had to say. Unwilling, 
however, to excite the enmity of his Romish neighbors, he declined admin- 
istering the oath. 

"The young woman remained several months in the neighborhood, 
spending her time in different families. Of course, the revelations she made 
soon became a matter of conversation among the people, and the indignation 
of the more zealous Papists was excited against her, and threats of violence 
were heard. Soon she disappeared from the neighborhood, and nothing 
more was heard of her. The magistrate, in whose family she had spent 
several weeks, made inquiries of her father respecting her. but received an 
evasive answer. Some years afterward, he was called to write the old 
man's will, and, observing that he did not mention the name of his daugh- 
ter, he ventured to ask him whether he did not intend to leave her anything. 
He answered that he supposed she was dead. 






328 



BEN HARDIN. 



'•This mysterious disappearance awakened in the minds of those who 
had known and respected the unfoitunate young woman strong suspicions 
that she had fallen a victim to priestly vengeance. About the summer of 
[834 the magistrate related to us the facts, and freely expressed his suspi- 
cions. In May, 1S36, in reply to some queries addressed to us by the Rev. 
Dr. Brownlee, through the Protestant Vindicator, of New York, we pub- 
lished the leading facts, omitting the names of the parties, which; indeed, 
we had forgotten, in the Western Protestant, of which we were then editor. 
Soon after we received a letter from Rev. George A. M. Elder, then Pres- 
ident of St. Joseph's College, calling for names and particulars. The char- 
acter of the letter sufficiently indicated the purpose to institute against us a 
civil suit for libel. Knowing, however, that what we had published was lit- 
erally true, we laid before the public all the material facts together with the 
names of the parties. As we anticipated, a suit was instituted for the char- 
acter of the presiding priest, and damages were laid at ten thousand dol- 
lars." 

Rev. David Alexander Deparcq was the presiding priest, whose 
character was thus impugned. He was of French lineage, and had 
come to the United States about the year 1818. He was pronounced 
by one who knew him to be of the class of priests known as workers. 
Whatever was of duty first claimed and received his attention ; but 
this term included for him the exercise of every power for good 
with which he had been endowed by heaven. He was charitable both 
in word and action. As a preacher, he spoke well, his sermons being 
both short and practical. Among the virtues attributed to him it was 
said he was just, impartial, truthful, most forgiving of injuries, and 
most tender toward repenting sinners. * Father Deparcq was in 
Europe at the time the aspersions on his character were published, 
but at the instance of Rev. George A. M. Elder, then President of St. 
Joseph's College, an action was instituted for libel. 

Dr. Rice, the defendant, was a native of Kentucky, the son of a 
Garrard county farmer. He obtained an education under difficulties, 
was several years a student at Centre College, and entered the minis- 
try of the Presbyterian church in 1828, in his twentieth year. As a 
preacher, teacher, editor, writer, and debater, he early became emi- 
nent. He was noted, notwithstanding infirm health, for energy, indus- 
try, and fortitude in difficulty. His first pastoral service was at Bards- 
town, where he established a female academy and founded a newspaper 
called the Western Protestant. His taste for controversy, and rivalry 
between the school established by him and similar Catholic institu- 
tions, were circumstances by no means favorable to the existence of 

(■Catholicity in Kentucky, by Hon. B. J. Webb, page 243. 






DKPARCQ VS. RICE. 

cordial relations among the different religionists at Bardstown. In 
fact, Dr. Rice regarded his claim to the patronage of Protestants as a 

superior right, and resented its invasion by Catholic teachers. This 
condition of affairs may have caused him to listen too implicitly to 
the statements of the nun, and vouch for them too confidently. I he 
array of counsel on both sides of the case was remarkable for chara< 
ter and ability. For Deparcq appeared John Rowan. Ben Hardin, 
Ben Chapeze, and Geo. W. Hite, while; Rice was represented by 
Charles A. Wickliffe, John J. Crittenden, Nathaniel Wickliffe, and T. 
P. Linthicum. 

That the young woman had been an inmate of a nunnery and aft r- 
ward had renounced her vows, and that she had assigned the reason 
therefor as stated by Rice, seem to have been established. But her 
statements as to the licentious conduct of the priest lacked corrobor- 
ation, and, besides, evidence was offered tending to show her to have 
been insane. She had mysteriously disappeared from the neighbor- 
hood where she had resided for several months after returning to the 
world. Some evidence was offered to show that she was subsequently 
seen in the State of Indiana. Some one answering to her name had 
undoubtedly taught school in that State, but a dispute as to identity 
and capacity to teach school somewhat weakened this evidence. 
While the insinuation was freely indulged that the priesthood had 
either procured or connived at her abduction or murder, yet there 
seems to have been no other ground for it than the mere inference 
from the supposed interest that body had in closing her mouth. 

The suit was pending a twelvemonth before it came to a hearing. 
The trial consumed a week, and was ably and skillfully managed on 
both sides. The court-house at Bardstown was packed during its 
progress. The Catholic bishop and some twenty of the priesthood 
were present, no doubt deeply interested in the proceedings, though 
Dr. Rice says, "to overawe the jury. That their cause was ably 
managed," he continues, "there could be no doubt. Every advan- 
tage was taken which legal technicalities could afford, and the strong- 
est appeals made to prejudice and passion." 

"The last argument I remember to have heard from Mr. Hardin," 
Hon. B. J. Webb, of Louisville, "was in the case of Deparcq vs. Rii 
for defamation of character. I was publishing a newspaper in Bardstown at 
the time, and it was while listening to Mr. Hardin's triumphant argument 
that I determined, if I could but get him to furnish me with a report of Ins 
speech, that I would publish an account of the trial in pamphlet form. 1 



33Q 



BEN HARDIN. 



called upon him afterward and preferred my request, which he willingly con- 
ceded. He did furnish me with some twenty or twenty-five pages of manu- 
script, which 1 put in type, and of which 1 brought him the proof. He never 
returned the proof, and to my repeated notes of request for the remainder he 
never vouchsafed me a single line of answer. He found, I suppose, that 
the publication of his speech would compromise him with certain of his 
friends, and hence preferred to do me an absolute injury than run any such 
risk. He did me, as I then thought and still think, a grievous wrong, for 
which he never proffered me the slightest apology. As I grow older, how- 
ex er, 1 increase in charity for those who are bothered at times with their chi- 
rography. Mr. Hardin's handwriting was about the worst I ever attempted 
to decipher." * 

To many persons the most distasteful of tasks is to write one's own 
speech — after delivery. When the inspiration of the hour has passed, 
and the burning words and breathing thoughts have grown cold, the 
mental palate is affronted when an attempt is made to reproduce the 
extempore banquet. Of the hundreds and thousands of speeches 
made by him, few were those Mr. Hardin ever wrote out. His pen- 
manship was exceedingly laborious, and in disappointing Mr. Webb 
he may have been less culpable than supposed. It is agreed by all 
who ever heard him that no report ever did justice to his speeches. 
There were fugitive strokes composed in part of thought and part of 
manner which no pen could reproduce. 

The verdict of the jury was for the priest for one cent in damages, a 
result, in view of the nature and circumstances of the controversy, that 
may be regarded as fortunate. A verdict for a nominal sum was quite 
sufficient to vindicate the plaintiff's character, while it left the defend- 
ant's friends ground to infer that he had acted without malice. The 
excitement and asperity generated by the trial long continued a dis- 
turbing element in the region where the controversy arose, and the 
slightest allusion to it caused a sensation. It is related that Rev. 
\\ illiam Downes, an eccentric Baptist preacher of the Green river 
country, noted for controversial talent, once met a Catholic priest in 
debate not long after this trial occurred. Each disputant was main- 
taining the superiority of his creed. The priest lauded the Catholic 
church because it forbade its members to join secret societies. Free 
Masonry was especially denounced, because of its wickedness and for 
its supposed responsibility for the murder of Morgan, who had divulged 
its secrets. This order was unpopular at that period and in that local- 
ity with all classes, and it was with a feeling of triumph the priest 
turned to his ad versary and asked him who killed Morgan ? Downes, 

Letter to Author. 



SPENCER S CASE. 



331 



in a shrill tone, screamed out that he would do so, if the priest would 
first tell the audience who murdered Milly McPherson? The excite 
ment produced by this episode abruptly terminated the debate. 

The accused and accuser and all the brilliant counsel engaged in 
that forensic tournament have long since passed to the bar where 1 he- 
secrets of all hearts are revealed to a righteous Judge. The passions 
and excitement engendered by the controversy have died away and 
its incidents have been almost forgotten. The increasing amenities 
of modern life and the decline of pugnacious Christianity conspire to 
render it improbable that such a deplorable and peace-disturbing 
event will ever occur again. But now and then one of that grizzled 
generation murmurs querulously that the fate of Milly McPherson is 
still a mystery. So it is and so it must be evermore. 

Spencer's Case — Murder. 

The case presently to be mentioned finely illustrates some of Mr. 
Hardin's most interesting and marked characteristics as a lawyer. No 
one had greater powers of intuition, and his confidence in knowledge 
and conclusions attained in that way was absolute. It was a kind of 
knowledge that he felt more strongly than he could support by reasons. 
The naturalist from the femur bone or even a tusk will reconstruct 
the skeleton of the megatherium of the antediluvian era with the 
unerring accuracy of science. So Mr. Hardin, from an apparently 
inconclusive link, would construct a chain of guilt that could not be 
broken. The case illustrates (better than the account of it will show) 
his power to fit and bind together a number of facts — seemingly insig- 
nificant and accidental taken separately — yet in combination irresist- 
ible in their convincing force. In no State of the Union has public 
sentiment ever been more potential in the jury box than in Kentucky, 
yet it will here be seen that he not only defied its power but actually 
changed its course in the period of a single speech. 

In 1842, one Spencer was indicted in the Hardin Circuit Court for 
murder of a boy — his step-son. Mr. Hardin assisted in the prosecu- 
tion. It was a case of circumstantial evidence entirely and the trial 
lasted a week. Spencer was a farmer, living in the Level Woods, 
whose family consisted of himself, a wife, and her son by a former 
husband. The boy had been sent a short distance on an errand, on 
horseback, to a neighbor's house. Not long afterward the horse 
returned riderless. The mother, alarmed at her son's absence, was 
starting to search for him but her husband forbade her. 



33^ 



BEN HARDIN. 



Shortly the body was found dead in the public road with a fracture 
of the skull. Spencer was arrested, charged with the murder, and 
indicted by the grand jury. The theory of the defense was that death 
had resulted from being thrown from the horse, and this was accepted 
by the public generally as true. So probable was the theory made as 
to convince Mr. Riley, the prosecuting attorney, of Spencer's inno- 
cence. Mr. Hardin had not been employed to prosecute, and while 
he sat by and attentively listened to the evidence he took no part 
until its conclusion. The fate of the murdered boy and the atrocity 
of the deed very greatly affected him, and caused him to volunteer to 
aid in bringing the murderer to justice. He insisted that he knew 
the prisoner to be guilty, and based that faith on the latter's refusal 
to let the mother go in search of her son. The facts in evidence on 
which he relied to convict were these : The boy's skull was fractured 
by falling on some hard substance or by a blow. In the vicinity 
where the body was found and presumably fell, if it had fallen from 
the horse, there was no hard substance by contact with which the 
wound could have been produced. So it was argued that the fracture 
was not from a fall, but from a blow. The next question was as to 
who inflicted the blow? In that inquiry the first step was to learn 
who had a motive to do the deed. Spencer and his wife lived together 
unhappily. The boy was the source of difficulty, and had been mis- 
treated by Spencer, who had not concealed his dislike. Here was a 
motive. Motive could be traced to no other. Not far from the body 
a hickory sapling or shrub had been recently cut down, as evidenced 
bv the fresh appearance of the stump, and a few feet of the sapling 
gone, of size and length to make a dangerous and deadly cudgel con- 
venient for handling. That cudgel was not to be found, but the size 
as indicated by the stump showed that it could have produced the 
identical wound on the boy's head. A strong inference (amounting 
almost to a fact) was that the person who did the killing evidently 
knew the road the boy would travel and the time he would arrive at 
the scene of the killing, as it was the only point on the route where 
the killing could have been done without discovery. Still another 
point against the prisoner was that about the time the murder occurred 
he could not account for his whereabouts. He made some effort to 
show that when from home that day he had been a direction entirely 
different from the place where the body was found. A few minutes 
before the horse reached home Spencer arrived with his ax on his 
shoulder. Tracks identified as his were found entering a field of flax 



SPENCEK S CASE. 333 

from the direction of the killing. He had freshly ground his ax that 
morning and had failed to grind out the gaps. The hickory shrub 
near the body had been cut with a freshly ground ax, as the stump 
showed, that had gaps in it. On comparison the gaps exactly c< >i 1 1 
sponded with those in the ax of the prisoner. The prisoner's ax 
had evidently cut the sapling, and the hand that held the ax had 
grasped the club that killed the boy. Such was the argument. All 
this the defense simply denied. 

Notwithstanding this corroboration of guilt, Mr. Riley was not 
converted to his associate's theory, and persisted that the jury would 
not convict on such uncertain evidence, and that he could not con 
scientiously ask them to do so. Mr. Hardin told him if he would 
make some plausible excuse and leave the county, so as not to appear 
to have abandoned the case, he would certainly convict the prisoner. 
This Mr. Riley did, and left his colleague to conclude the prosecution 
alone. The counsel for defense were entirely confident of the pris- 
oner's acquittal. Public sentiment endorsed such a verdict in advance. 
Mr. Hardin realized the situation, but, at the same time, had the 
unshaken and abiding conviction of the prisoner's guilt, and a keen 
sense of the atrocity of his crime. It is needless to say that, in the 
closing argument, all the powers that were in him, and all the arts of 
which he was master, were brought into requisition. Every circum- 
stance was arrayed, vivified, and focalized. The defense had rested 
entirely on its theory of accidental killing. If the jury concluded it 
was intentional, the prisoner offered no hypothesis as to who did it. 
Mr. Hardin reduced the case to this simple question : Was the boy 
killed accidentally or intentionally ? If accidentally, the prisoner was 
innocent; if intentionally, then he, and no one but he, could be 
guilty. The cruel step-father, the long-suffering boy, the anguish- 
stricken and distracted mother, the cowardly killing, were topics that 
were handled to effective purpose. The speech prepared both tin- 
public and the jury for the verdict. Spencer was convicted and sen- 
tenced to be hanged. 

Preceding and subsequent to his trial and conviction, he was 
extremely discreet. He had enjoyed a fair character in his neighbor- 
hood, which had remained unshaken by the charge against him. I [e 
persistently maintained his innocence, and his deportment conformed 
to his professions. Mr. Hardin himself was not a little surprised thai 
he so strongly held out. While convinced of his guilt to a moral 
certainty, yet he realized that there was a physical possibility of in no- 



334 



BEN HARDIN. 



cence. Growing restless about the case, he resolved to attend the 
execution. He was anxious to hear the prisoner's last utterances on 
the subject. Said a gentleman present on that tragical occasion : 
" Mr. Hardin, myself, Mr. Poston, the sheriff, and a minister of the 
Gospel, by invitation, rode in the wagon with the prisoner to the 
place of execution. One of the party suggested to Spencer that, if 
he was guilty, ' it was needless to speak untruly about it any longer, 
and that he ought not to leave the world with a lie on his lips.' The 
condemned man responded that the witnesses who had testified in the 
case had told the truth ; that Mr. Hardin, in his speech, related 
exactly how the murder was committed, except he was mistaken as 
to time. He had ' killed the boy half an hour sooner than Mr. Har- 
din had asserted,' and insisted that some one must have informed 
the latter as to the details of the killing." 

R. Logan Wickliffe's Case — Murder. 

One of the remarkable trials in which Mr. Hardin was engaged, 
remarkable chiefly on account of the social position of the defendant 
and of the array of counsel, was that of R. Logan Wickliffe, charged 
with murder. The prosecution was conducted by Nathaniel Wolfe, 
Esq., of the Louisville bar, at that time considered one of the ablest 
criminal lawyers in the State. The case was argued for the defense 
by Mr. Hardin, Thomas W. Riley, George Thurman (of Springfield), 
and General William Preston, then of Louisville, now residing at Lex- 
ington. Mr. Hardin's speech on the occasion was one of the ablest of 
his life. 

Wickliffe was charged with the murder of Pat Gray, a reputable 
citizen of Bardstown, who was a blacksmith, and, in addition to this 
pursuit, kept horses for hire. The origin of the affair was purely 
political, Gray being an enthusiastic Whig and influential in local 
affairs, while Wickliffe, a young lawyer, was prominent as a Demo- 
crat, and was a gifted speaker. It occurred during the campaign for 
delegates to the constitutional convention of 1849. Mr. Hardin, 
William R. Grigsby, and Hon. Charles A. Wickliffe were rival candi- 
dates, and of the latter the prisoner, a kinsman, was an ardent sup- 
porter. Wickliffe procured a horse from a friend to ride to a political 
meeting a few miles from Bardstown. Gray was present at the meet- 
ing and discovered the horse (which he had hired to another) hitched 
near by. Learning that Wickliffe had ridden it, he indulged in abusive 
language against him, and ended by leading the horse back to town. 



R. LOGAN WICKLIFFE S CASE : 

Wickliffe was left afoot, and learning the cause of it indulged in denun- 
ciations of Gray. Next day the parties met in town at a bonfire, and 
Gray grossly insulted Wickliffe. The former was a strong athletic 
man, greatly the superior of the latter physically. It was report! 
also that on the occasion Gray indulged threats that he would kill the 
prisoner if the latter annoyed him. 

On the morning of the killing, Wickliffe, being on the street near hi 
father's office, saw Gray on the opposite side, not far from his house 
The latter advanced across the street a few paces, in the direction of 
Wickliffe, whereupon the latter stepped into the clerk's office and 
picked up a double-barreled shot-gun, which was usually kept there 
loaded, and, coming out, advanced on Gray. The latter turned, 
slightly, on which Wickliffe defied him to come on, at the same time- 
firing, inflicting a mortal wound. 

A story is told at Bardstown, differing from this, to the effect that 
Wickliffe had concealed himself, with his gun, behind one of the 
locust trees that then lined the sidewalk in front of the clerk's office, 
and on discovering Gray, stepped out, saying: " Look out, Pat," and 
fired, without other parley or warning. Those locust trees long flour- 
ished, save the one that concealed Wickliffe, which soon afterward 
withered. 

The affair excited the fiercest passions of the people. Wickliffe 
was indicted by the grand jury for murder, but on account of party 
heat and the difficulty of obtaining an impartial jury, the case was 
removed to Springfield, where the trial occurred. Popular feeling 
against Wickliffe was very great in Nelson county, and apparently not 
less so in Washington, to which the venue was changed. 

The trial came on in the year 1850, Judge Samuel J. Lusk presid 
ing. An effort was made in the course of the trial to introduce the 
dying declarations of Gray, to the effect that he had borne no ill will 
against the prisoner, and did not know why he killed him, which the 
court allowed, against the prisoner's objection. The latter had offered 
to prove, on cross-examination of prosecuting witnesses, the threats 
of Gray at the meeting, and at the bonfire, but this was refused, 
because there was no proof that they had been communicated to the 
prisoner. This refusal seemed to turn the tide in favor of Wickliffe. 
The point was made, in argument to the court, that it was unfair to 
admit the statements of deceased on one occasion, to convict the pris- 
oner, and on the other hand, exclude those in his favor, made on 
another occasion. Afterward, the court reconsidered this latter ruling 



336 BEN HARDIN. 

and allowed the whole testimony, on the ground that the previous 
threats of deceased were competent to contradict the dying declara- 
tion. With this evidence before the jury, it appeared that there had 
been many threats on both sides, and each party was abundantly noti- 
fied of the angry state of feeling of the other. 

Perhaps no man in the State ever exhibited more talent than did 
Mr. Hardin in this case. Mr. Wolfe, who opened the argument, had 
made a most profound impression on the jury. He had alluded 
pathetically to the bereaved widow and children of the deceased, and 
had also made with great effect the point that the prisoner was an aris- 
tocrat — of an aristocratic family — who had no regard for the rights of 
a laboring man, etc. Mr. Hardin began his speech by instituting a 
comparison between Mr. Wolfe and Phillip York, afterward Lord 
Hardwick, and spoke of how he had risen to the highest round in the 
profession and his name as a prosecutor had become a terror through- 
out England. Mr. Hardin spoke of the fears which had been created 
in his own mind on account of Mr. Wolfe's great abilities. 

" I had been applied to to defend Wickliffe and had promised to do so, 
and for that purpose had reached Bardstown the Saturday evening before 
court on my route to Springfield. I had just returned from Brandenburg, 
very much wearied by my long ride — made more fatiguing by having led 
a horse, which I had secured as a fee at the Meade court. As I came into 
my front yard, leading the horse, my little grandchild ran out to meet me. 
I dismounted, and without waiting to kiss me, she threw her little arms 
around my knees and her first exclamation was : ' O, grandpapa, did you 
know that Mr. Wolfe had come to town?' Tired as I was I answered as 
softly as I could: 'Well, my dear, what of that?' She answered: 'They 
say Mr. Wolfe is the greatest lawyer in Kentucky and that he is sure to 
hang Logan Wickliffe. ' This agitation of the child discomposed me very 
much ; however, I took my horses to the stable and put them away and 
returned to the house. It was about five o'clock in the evening, and of 
course the dinner hour was past. My wife, who was expecting me home, 
had set out a dish for my dinner, which was cold, it is true, but of which, as 
she knew, I am extremely fond — jowl and snap beans I sat down at the 
table feeling exceedingly hungry, and picked up my knife to help myself 
when my wife, who at the moment was pouring me a cup of coffee, observed : 
• Mr. Hardin, did you know that Mr. Wolfe has come to town?' I had 
thought I had more self-control, but it took away my appetite in an instant. 
Pushing aside my plate, and rising from the table hastily, and I fear impo- 
litely, I said : ' Good God, Betsy! can't a man eat his dinner in peace, even 
if Mr Wolfe has come to town ?' 



K. LOGAN WICKLIFFE'S CASE. 337 

" I left the table with no appetite at all, and went mil under the Lombardy 
poplars in my front yard, when my daughter, Mrs. Helm, who was visiting 
my house, came out and joined me. Said she : ' Have you heard the ni 
Said I, still somewhat ruffled from loss of my dinner, 'What new 
replied : ' Mr. Wolfe has come to town with a barouche filled with law books, 
drawn by four horses.' Hearing this irritated me to su< xtent thai I 

said, 'Pshaw, my dear, don't trouble me about Mr. Wolfe.' 1 immediately 
left my home, and, after walking about four or five hours, I returned more 
composed, and went to sleep without saying anything more about ii. feeling 
that I had controlled myself, and also that 1 would be able to do so in any 
emergency. 

" It has been my custom, usually, not to pay much attention to my dn 
or beard just in my ordinary practice, but I am very particular about these 
matters whenever I have an important case like the present. Now you . an 
see, gentlemen, that I have not shaved for three days, and I feel that I owe 
you an apology, but the fact is having lost the use of my right arm by a tree 
falling on my hand many years ago in a coon hunt on beech fork, I can not 
shave myself, and have to rely on a barber. There is an excellent barber in 
Bardstown who has a sign which looks as if it were modeled after the pattern 
of a stick of peppermint candy, having alternately red and white stripes up 
it which is the immemorial badge of that honorable and useful profession, 
derived from some mythical origin in the time of the Greeks and Romans. 
It was Sunday evening, and beyond the time when they ever shave custo- 
mers. But I am accustomed on such occasions to go around to the back 
door, and the colored barber always knows my knock. Just as I reached 
the door I paused, attracted by a lively conversation going on within, and I 
confess that I was tempted to eavesdrop. Three or four colored men were 
discussing the approaching trial with great animation. My friend, the bar- 
ber, had just concluded an elegant argument to the effect that this jury would 
certainly acquit Logan Wickliffe. This position was vehemently denied by 
three of his friends who insisted that he would certainly be convicted and 
hanged. The chief authority for this deplorable prophecy was the colored 
preacher. Meantime, I was an attentive auditor outside waiting to find out 
what the verdict of the barber shop would be The preacher was very ani- 
mated in urging his views. He quoted several texts of Scripture much to 
the point, and, after a very logical demonstration, he said : "And more and 
mostly of all, they have raised and paid two thousand dollars to prosecute 
Logan Wickliffe, and they have brought Mr. Wolfe, the greatest lawyer in 
Kentucky, to prosecute him, and if there is, in my judgment, anything 1 ei 
tain in this terrestrial life, Logan Wickliffe is just bound to be hung.' 

"Hearing this conclusion of the whole matter, I gave up. and fled in 
silence. I said no more ; having told you this true story, I am here before 
you, gentlemen of the jury, in a most pitiable condition." 



o^3 BEN HARDIN. 

Early in the argument, Mr. Hardin referred to the false education 
that the prisoner had received as to personal responsibility and per- 
sonal duties under unmerited affronts. This he traced to his parents 
who were the earliest settlers of Chaplin hills and the Beech Fork, 
and said that nearly every man in the court-house had grown up and 
known them from the days of the early pioneers until that time. 

•• Wickliffe," he continued, " was not of a vigorous frame, but of a high 
spirit and high intelligence. He had been charged with being of an aristo- 
cratic family. He was not to be censured on account of the distinction of 
his family, nor could the wretched notion of an aristocratic example be 
charged. If he had family pride, he had reason for it from the long and 
many services of the Wickliffes to the people of Kentucky in its councils 
and in its wars, and it would be the basest ingratitude for the jury to testify 
their consideration for the family by putting one of its sons to death." 

Having ingratiated himself with the passions of his auditory, he 
referred to the statement of Gray on his dying bed, that he had never 
intended to harm Wickliffe. Mr. Hardin accused him of perjury in 
the last moments of his life ; that, although he was a member of 
a church, yet he was one of the most violent men in the State, and 
most powerful physically. He sought to bully a weaker adversary, 
and was armed with a deadly weapon, and tried to provoke a diffi- 
culty with the intention of killing Wickliffe ; he had advanced on him 
next morning after breakfast with the same fell intent; he had driven 
Wickliffe into the clerk's office, and thought he had disgraced him, 
but it was a dreadful mistake. 

" Such a man should beware when a gentleman retreats under insult and 
without complaint. Seizing the first weapon he could find, Wickliffe reap- 
peared with the fixed resolution that he would be bullied no longer, and that 
cither he or Gray should die. Their meeting, therefore, was to be treated as 
a mere duel, not a murder. It was a duel on full notice, in which each man 
was allowed to act at his own pleasure as to time, place, and weapons." 

This is but a short and imperfect sketch (says General Preston, to 
whom the author is indebted for it) of the speech, which at times was 
marked by episodes of singular humor and affecting pathos. The 
parallel between Lord Hardwick as a prosecutor and Mr. Wolfe was 
oddly-conceived and so comically consistent that the judge, jurors, 
and audience were unable to restrain their mirth, to the evident 
embarrassment of the eloquent prosecutor from Louisville, who grew 
angry and asked the court if that was a proper way to conduct a crim- 
inal trial, and if it were proper license to indulge counsel in such com- 



R. LOGAN WICKLIFFE'S CASE. 330 

parisons? Mr. Hardin respectfully halted to give place to objections, 
and promptly said if any wrong were done Mr. Wolfe or his sensibil 
ities in comparing him to Phillip York, afterward Lord Hardwick, lie 
had not intended it, and regretted it deeply. The peals of laughter 
produced by the apology, which was unobjectionable in its fulln 
and the manner in which it was made, overcame the effect that Mr. 
Wolfe had produced upon the jury. This diversion won the case. 

Mr. Hardin said in course of his speech that Mr. Wolfe must not 
be disappointed if he failed to obtain, a verdict of guilty from that jury, 
for, indeed, he had noticed that he seemed to be a little hoarse, no 
doubt, the effect of a cold (or, at least, such was the rumor), which, 
of course, had greatly impaired the effect of his speech. The farmers 
of Washington county were possessed of fine sense and taste, and it 
was always a rule with them in a horse trade to have nothing to do 
with an animal at all touched in the wind. The gentleman reminded 
him of a young lawyer that George Thurman wanted to take into part- 
nership, who, after graduating at the University of Virginia, came to 
Springfield and put up his sign and opened an office. He had begun 
to receive considerable patronage, when, suddenly, he took down his 
sign and announced his purpose to remove to Louisville. The tavern- 
keeper with whom he boarded, unwilling to lose his patronage, remon- 
strated against removal, saying that if he had any difficulty about 
money matters that he could board at his hotel and he would indulge 
him in the payment of his bills until he made the money. The young 
man thanked him, but said that he could not alter his determination; 
that he was afraid that on account of the frugality of the county court 
he would, if he remained, ruin his voice, and that no man could ever 
produce the proper effect on the jury, in his judgment, in a court- 
house that was not plastered. (The court would now and then inter- 
rupt these episodes, admonishing Mr. Hardin to confine himself to the 
case, but the latter, after flourishing his bandana handkerchief and 
assuming an air of much deference, and pressing his thumb on one side 
of his long, flexible nose, never allowed the merriment to abate, and 
the court had a suspicious way of covering his mouth witli his hand 
kerchief and turning red in the face, that belied his cries of "order.") 

He quoted a song of Eric the Norseman or some Scandinavian 
ditty — alluding to Mr. Wolfe — to the effect that the path of his glory 
was terrible, being lined with the faces of dead men on swinging gib- 
bets, and that long lines of vultures marked the way of the hero. It 
required only fifteen minutes for a verdict of "not guilty." 



HO 



BEN HARDIN. 



CHAPTER XXIV. 

AT THE BAR — WITH POLITICAL INTERLUDES. 

DURING the period commencing with the termination of his con- 
gressional career, in 1837, ajid extending to the time he became 
Secretary of State, in 1844, Mr. Hardin held no public office, and was 
a candidate for no position save that of presidential elector, in the last 
named year. He was never more actively employed, professionally, 
and never with greater profit, both pecuniarily and in reputation, than 
during this interval. Without abandoning his practice at home, he 
annually visited the State of Mississippi, and became a regular prac- 
titioner in its courts, whence he derived a valuable income. One of 
the celebrated cases of his career occurred in the course of his South- 
ern practice — Vick's heirs against Lane, etc. Sergeant S. Prentiss 
was a party to the case, and practiced it in opposition to Mr. Hardin. 
Prentiss won in the court below, but the case was taken to the Supreme 
Court of the United States and reversed, and thus he unluckily lost his 
fortune. Outside of Nelson, he was a regular attendant on the 
courts of many neighboring counties. He attended the semiannual 
sessions of the Court of Appeals, at the State capital — his retainers 
there, however, usually being in cases in which he had been counsel 
in the courts below. 

The routine of a busy lawyer's life is not a little monotonous. Its 
most stirring events are those important cases that excite public atten- 
tion and interest. The Wilkinson case, and many others hardly less 
tragic in character, though less famous, occurred during this period. 
The history of important cases is very much the history of the law- 
yers engaged in them. The details of one case are strikingly similar 
to those of another and of all, and the work of one lawyer is much 
like that which another performs. The labors of a weak lawyer out- 
wardly differ little, save in argument, from those of his stronger 
brother — results chiefly distinguishing between them. 

Mr. Hardin, like most lawyers of his time who rode the circuit, 
traveled horseback, carrying with him such changes of clothing as the 
period of absence from home demanded. He had his stopping-places 
on the journey and his lodgings at his destination to which he had 



THE HARRODSBURG CELEBRATION. 341 

been long a. customed. He always found himself engaged, on his 
arrival, with causes and clients. He fell to work without delay, sub- 
ordinating comfort, rest, and social enjoyment to business. As soon 
as his engagements ended for the term he lost no time in departing — 
going home or to another court. His practice was not unli ivic 

warfare maintained for his clients. The enemy encountered and over- 
come on one part of the field, he hastened to meet antagonists at 
another. The excitement which he felt was similar to that which 
spurs the soldier ; the practice of law with him was the ruling passion. 

This busy life, however, did not engross his entire thought and 
labor. At a celebration in 1841, at Harrodsburg, of the sixty-sixth 
anniversary of the settlement of Kentucky, he was the orator of the 
day. The able and interesting address he then delivered has not been 
preserved, though still spoken of in terms of highest commendation 
by those who heard it. That it was not preserved is greatly to be 
regretted. Few were more deeply versed in the annals of Kentucky, 
and still fewer better qualified to interest or instruct in regard to them. 
His young eyes had witnessed the founding of Kentucky. He had 
watched its vicissitudes and progress from a mere association of scat- 
tered settlements until it became a powerful State. He had been not 
only a spectator, but an actor in some of the most important evei 
in its history. The causes that led to these events, the men who had 
participated in them, and the results that followed were all matters 
concerning which he was well qualified to speak. On the occasion in 
question from seven to ten thousand persons were present. The 
encampment often military companies gave a martial air to the event, 
while the entertainment and profit of the day were still further div< 
sified by a sermon delivered by the Rev.. Joseph C. Stiles. 

At the Harrisburg convention of 1840, General Scott and his Whig 
friends combined with the supporters of General Harrison, defeating 
Mr. Clay and nominating Harrison for the presidency. It was a severe 
blow to Mr. Clay's ambition. He had been sanguine of nomination, 
and was undoubtedly the favorite with the masses of his party. He 
commented on the matter very bitterly, and complained of the treach- 
ery of his friends, among others of Scott. He justly charged that he 
had fought the bitter battles of his party for many years without 
reward, and that when he at last hoped to enjoy the fruits of victory 
he was turned thankless away. He said at the time that if there '\ 
two Henry Clays, one could make the other President, but when he- 
spoke, wine and anger rather than either Clay were speaking. 



34^ 



BEN HARDIN. 



General Scott gave a Whig banquet at Washington in the interest 
of General Harrison, shortly after the nomination. Invitations were 
issued to all Whig members of Congress and leading men of the party 
about the capital. There was some curiosity as to whether Mr. Clay 
would attend. The reception rooms, when the hour arrived, were 
crowded and on the qui vive when an usher announced " Mr. Clay." 
As he strode in with characteristic dignity, General Scott advanced to 
meet him with extended hand. " I am happy to meet you, Mr. Clay," 
was the hearty greeting of the host. " I'll be d — d if you are, Gen- 
eral Scott," was the indecorous but emphatic reply of the still irate 
Whig leader. An explanation of such unseemly conduct is furnished 
by Henry A. Wise, in his "Seven Decades: " "From 1839 to l< &44> 
as long as he was in the House, Mr. Clay was especially intemperate 
in habits and more intemperate in exhibition of temper and political 
conduct." Alluding to him at this period, Tom Marshall speaks of 
him as "a sublime blackguard." 

John Tyler, of Virginia, of the State's Rights party, was placed on 
the ticket with General Harrison, while the Democrats nominated 
Martin Van Buren for President, and Richard M. Johnson for Vice- 
President, both being Jackson Democrats in the fullest sense. 

Of Colonel Johnson, the English traveler, Miss Martineau, thus 
wrote in 1835 : "If he should become President he will be as strange 
a looking potentate as ever ruled. His countenance is wild, though 
with much cleverness in it ; his hair wanders all abroad, and he wears 
no cravat. But there is no telling how he might look, if dressed like 
the other people. "* He habitually wore a red plush vest, the gor- 
geousness of which he may have regarded as compensating for absence 
of neckwear. . 

The campaign that ensued was, in some respects, unique. The 
Whig nominating convention had adopted no platform, had announced 
no principles, and committed its nominees to no policy. The candi- 
dates depended for success on their reputation for political integrity, 
and on their personal popularity, rather than because they favored or 
opposed any special principle or measure. They opposed Jackson 
and Van Buren, but what they favored was not announced, and no 
one seems to have inquired. The campaign was conducted in a man- 
ner highly in keeping with its inauguration. It was called the " Log 
Cabin and Hard Cider" campaign, because the Whigs used these as 
symbols of Harrison's Republicanism. At every political meeting a 
log cabin was erected — in which hard cider was served — and often 

' Western Travel, page 155. 



MR. HARDIN AS A CAMPAIGNER. 



343 



such a structure was arranged on wheels and hauled from point to 
point, arousing the greatest enthusiasm. 

Mr. Hardin, as usual, took part in the campaign. After the retire- 
ment of General Jackson from public life, Mr. Van Buren claimed to 
wear his mantle, and to be the special exponent of the principles and 
policy that had marked his turbulent career. Yet, between Jackson 
— "the fighting-cock " Jackson (as Parton calls him) — and the magi- 
cian of Kinderhool: — the shrewd lawyer and crafty politician, Van 
Buren — there existed the greatest imaginable contrast. Their mental 
and moral characteristics were not less unlike than their persons. 

A friend of the author thus refers to a campaign speech of Mr. 
Hardin at this period : " His allusions to Van Buren were broad in 
humor but effective. He described his personal appearance as a little 
duck-legged man, foppish in dress and manners. When he approached 
another he would commence bowing and scraping, and just before 
reaching the person would execute a short backward movement (with 
a view to greater effect) then bow forward and offer his hand — all 
which maneuvers Mr. Hardin imitated. He described how Van 
Buren dressed and took care of his hair — using tortoise-shell combs to 
keep it in curl. He also described how, with his duck legs, he under- 
took to tread in the footsteps of the long-legged Jackson — convulsing 
his hearers by the illustration."* Governor Henry A. Wise, in 
" Seven Decades," says Van Buren was called the " mistletoe politician, 
nourished by the sap of the hickory tree." 

It must not be inferred, however, that Mr. Hardin depended solely 
on his powers of ridicule and invective, although they were effective 
weapons. No one contributed more efficiently to educate the public 
mind in regard to the questions dividing the great political parties oi 
that day. " During the Harrison campaign in 1840," says Colonel R. 
T. Durrett (author of the Life of John Filson), " I attended a barbe- 
cue in Henry county, where were present Bellamy Storer, of Ohio, 
and Mr. Clay, and Mr. Crittenden. All of these made speeches and 
so did Mr. Hardin, who was also present. In my youthful judgment 
Mr. Hardin excelled them all." 

In the beginning of the year 1842, the name of Mr. Hardin was 
mentioned in connection with the United States senatorship. Mr. 
Clay and Mr. Crittenden were the sitting members, though the term 
of the latter was just expiring, and Governor James T. Morehead 
had been chosen his successor. February 16, 1842, Mr. Clay resigned 
his seat, in pursuance of a desire entertained for several years of 

* Harrison D Taylor, Esq.. of Hartford. 



344 



BEX HARDIN. 



"retiring to private life." Mr. Clay's valedictory in the Senate was 
boih manly and eloquent, and Mr. Colton, in describing the scene in 
his "Life of Clay," throws not a little pathos into it. 

Some months afterward, Governor Letcher, a warm friend of the 
retiring statesman, seems to have read something between the lines 
of that valedictory that escaped the innocent eyes of Mr. Clav 's 
biographer. "The old Prince" — so does the irreverent governor 
refer to the sage of Ashland, in a letter to Crittenden — " the old 
Prince is taking a pretty considerable rise everywhere, I can tell you. 
1 guess he now begins to see the good of leaving the Senate — of get- 
ting off awhile merely to get on better. He must hereafter remain a 
little quiet and hold his jaw." 

On Mr. Clay's resignation, Mr. Crittenden succeeded him, by 
appointment. It was understood that the Legislature, which was 
then in session, would shortly elect a successor to fill the vacancy, 
and that Mr. Crittenden was a candidate. 

That Mr. Hardin was also an aspirant may be gathered from corre- 
spondence between Mr. Crittenden and Governor Letcher. " Owsley 
heard as he passed through Lancaster," writes Crittenden from Wash- 
ington, "that your nephew, George McKee, would vote for Hardin 
in preference to all others." 

On February 24th (the day before the election), Governor Letcher 
thus writes from Frankfort: "Mr. Clay's resignation was filed yester- 
day, and I am told that in one moment afterward a few demons set 
about the work of mischief. They are endeavoring to bring out all 
sorts of opposition, trying everybody and anybody. Underwood, they 
think, would embody the greatest force, because of his Green river 
residence; but that point has been guarded. His friends won't allow 
the trick to be played, that is settled ; and if Underwood was here 
he would settle it in the same way. Charley Morehead is talked of, 
but, in my opinion, he won't make the attempt. Ben Hardin is 
here ; I presume he will be the opposition ; hope he will make a poor 
show."' 

Whatever Mr. Hardin's plans were, he seems to have made no 
attempt to execute them, and so. on February 25th, Mr. Crittenden 
was elected without opposition for the remainder of Mr. Clay's term. 
At the following session Mr Crittenden was elected for a full term. 
In the August preceding, Letcher had written : l - Ben Hardin and John 
Helm may possibly try to figure in the game, but it will not amount 
to much." Governor Helm was elected speaker of the lower House 



CLAY AND VAN BUREN. 






in the State Legislature, of which he was that session a member, but 
it does not appear that either he or Mr. Hardin made any attempt to 
"figure in the game." As stated in a subsequent chapter, it is not 
improbable that Mr. Hardin supposed that holding the post ol seen 
tary of State would be favorable to his senatorial aspirations. As muc h 
was charged, but it does not appear- that he ever reached the poii 
becoming an avowed candidate. 

In 1844 Henry Clay for a third time entered the lists as a presi- 
dential candidate. His friends were never more attached and enthu- 
siastic, his enemies never more active and implacable. To his old 
foes, the hero of New Orleans and his followers, he had added John 
Tyler and his friends, John C. Calhoun and his adherents. Webster's 
relation to President Tyler's cabinet neutralized any power he might 
otherwise have wielded either way. Notwithstanding all these ill 
omens. Mr. Clay entered the contest with a boldness and confidence 
that inspired his friends. He entered it with the assumption that the 
prestige of the Whig party that in 1840 had elected Harrison would 
now bear him not less surely to victory. 

Mr. Van Buren was in this year the prospective Democratic can- 
didate. A majority of the votes in the approaching national conven- 
tion of his party had already been secured by the action of State 
meetings, and his nomination seemingly made certain. A contest 
with him was exceedingly gratifying to Mr. Clay, inasmuch as he- 
stood for all that was objectionable and unpopular in Jackson's two 
administrations as well as his own, unredeemed by the military glory 
that had outshone all the shortcomings of the "old hero." The polit- 
ical issues of the day were not a little hackneyed, but they neverthe 
less served to maintain party alignment. 

There was a question at that period somewhat in embryo, yet suf- 
ficiently developed and defined to be at any moment injected as an 
issue in current politics. There was a sentiment prevalent through 
out the South favoring the annexation of Texas to the United States 
and its admission as a State. of the Union. The population of the 
Lone Star republic was composed almost entirely of those who had 
emigrated from the United States, and the people from the Smith felt 
them to be neighbors and kinsmen, imbued with like interests and 
sentiments with themselves. So far as the public mind of the North 
had assumed shape, it was adverse to annexation. It would add to 
the political importance of the South and disturb the equilibrium of 
the sections. The plea that it would embroil the country in a foreign 



346 BEN HARDIN. 

war was probably but a make-weight and pretext. The question of 
annexation at the time was really between sections rather than between 
parties. Whigs and Democrats favored it in the South ; Democrats 
and Whigs opposed it in the North. Both parties in their organized 
capacities were shy of it, and each was apprehensive of taking either 
horn of the dilemma. 

Mr. Van Buren, assured, as he felt, of the Democratic nomina- 
tion and of election, was loth to hazard his prospects by dealing with 
the question. He and his friends' were disposed, if possible, to keep 
it in the background, at least until after the presidential campaign 
ended. Yet, it was realized that it was an issue that might be pre- 
cipitated at any moment, and in such event must be promptly and 
unhesitatingly met. He was not a man of impulse, as was Clay ; he 
was a cool, calculating, and adroit, if not wise, politician, and, fore- 
seeing the emergency, provided for it. On due deliberation and 
consultation with his friends, he wrote a letter, avowing his hostility 
to the annexation of Texas, which, however, he did not publish, but 
entrusted to certain friends in Washington to be kept secret, and only 
to be divulged when necessity should arise. As to when that neces- 
sity would arise depended on the uncertain events of the future. If 
Mr. Clay should favor annexation, and it proved popular, Mr. Van 
Buren could readily concur, and thus share that popularity. If it 
proved unpopular, the secret letter would then be published, showing 
how all along he had opposed annexation. If, however, Mr. Clay 
opposed annexation, and the measure proved popular, Mr. Van Buren 
could modify his views, and destroy the secret letter, and so tack 
about as to catch the popular breeze. It seemed beforehand as if 
having written that letter was a very shrewd and wise thing. 

Mr. Clay, on the other hand, had written no letter of any kind. 
He had not consulted his friends, or determined upon his line of 
action with reference to the Texas question. He always felt prepared 
without advice to determine his political course in every emergency. 
There had as yet been no occasion for him to take ground on the 
Texas question, and it is doubtful if his most active and intimate 
friends were advised as to what his course would be in respect to it. 
It is said that President Tyler was chiefly instrumental in introducing 
the subject into the canvass, and that he was actuated thereto by a 
desire to defeat Mr. Clay, in revenge for the latter's bitter warfare on 
him and his administration. On February 12, 1844, he had nego- 
tiated a treaty with the Texan Government for annexation, but the 






TWO DISASTROUS LETTERS 



7 



Senate refused to ratify it. He possibly foresaw Mr. Clay's cow 
and anticipated its result. He had taken the precaution to secure the 
active co-operation of the old warrior at the Hermitage in favor of 
annexation, and had committed the Democratic party in its favor, to a 
great extent, thereby. 

Such was the situation when Mr. Clay set forth on a Southern tour 
in the interest of his candidacy. Arriving at Raleigh, he frit called 
upon, by the state of public feeling he discovered in the South, to 
announce his position in reference to the Texas question, and so wrote 
and published a letter avowing his opposition to annexation. Ik- 
denounced it as compromising "the national character and dan- 
gerous to the integrity of the Union." This letter, though in keep- 
ing with his character, was a surprise to the country and a shock to 
his friends, especially in the Middle and Southern States. It lost him 
many supporters without any corresponding compensation. In short, 
it was a political disaster never to be retrieved. 

At the particular period when the Raleigh letter was about to be 
published in a Washington newspaper, Mr. Van Burcti' s son, John, a 
sprightly lawyer and dashing young gentleman of New York, hap- 
pened in Washington, his father being then at his home in Kinder- 
hook. John, in addition to a natural flow of animal spirits, was, at 
that time, indulging in a series of convivialities that deprived him 
of his sober, cooler, and better judgment. But self-confidence and a 
lively appreciation of his own powers were well-known characteristics 
with him at all times. During his father's administration it was under- 
stood that he had been a suitor for the hand of no less a personage 
than the present Empress of India, then the girlish Queen of Eng- 
land. Nothing more came of that adventure than the title of " Prince 
John," which clung to him all his days. So it was John felt himself 
a sort of minister plenipotentiary for his father, and knowing of the 
existence of the secret letter, conceived that the moment had arrived 
for instant publication, and so he obtained and did publish it simul- 
taneously with the appearance of Mr. Clay's letter in Washington. 
And thus Mr. Van Buren's ambitious hopes, despite all his shrewd- 
ness, were forever laid low. 

It is true that Mr. Van Buren had a majority of the votes 

national convention pledged in his favor, yet the Democratic leaders, 

when the convention assembled, had no difficulty in surmounting this 

obstacle. Some of these same votes (pledged to Mr. Van Buren) 

assisted in the origination and adoption of the famous two-thirds rule ; 



348 



BEN HARDIN. 



that is, requiring two-thirds of all the votes in convention for nomi- 
nation. The result was Mr. Van Buren's defeat and the nomination 
of James K. Polk, of Tennessee. 

Mr. Polk was not the equal of Mr. Clay in ability, but, neverthe- 
less, a most respectable figure. As governor of Tennessee, as mem- 
ber of Congress, and as speaker of that body, he had acquitted him- 
self with honor. But whatever superiority Mr. Clay enjoyed in the 
way of talent was more than offset by the advantage of his competitor 
on the question of annexation. It is needless to say that every possible 
assurance was given that Mr. Polk was in favor of that scheme, although 
his sectional location rendered assurance unnecessary. It proved the 
controlling question of the campaign. Mr. Clay attempted to parry 
the damaging effect of the Raleigh letter by modifying his views in a 
subsequent publication (called his Alabama letter), but the attempt 
was unsuccessful. 

Mr. Hardin had been elector for Clay in the campaign of 1832, and 
at the special instance of the latter he was again assigned that post. 
Tt is not probable that the latter intervened in this matter so much 
from overweening partiality for Mr. Hardin, as from confidence in his 
great ability as a campaigner. Although, in early life, these two had 
had some spirited encounters not altogether pleasant or promotive of 
cordial relations, yet after 1824 there is every reason to believe that 
Mr. Hardin was always the loyal and unfaltering supporter of the 
great Whig leader. Possibly, indeed probably, this support was 
prompted by attachment to the cause he represented, with a touch of 
State pride thrown in, rather than devotion to the man. Mr. Hardin 
was no hero worshiper. He was irreconcilably opposed to General 
Jackson and his political measures and methods, and in the long and 
bitter struggle for mastery in the control of government between the 
latter and Mr. Clay, Mr. Hardin would have found it difficult in analyz- 
ing the motives of his action to determine whether opposition to 
Jackson or support of Clay most animated his efforts. 

There were, from time to time, departures made by Mr. Clay in 
virtue of his unquestionable leadership of his party, of which Mr. 
Hardin, in common with other reflecting Whigs, doubted the wis- 
dom. Mr. Clay often acted more from willfulness than wisdom, and 
unnecessarily sacrificed or imperiled the welfare and success of his 
cause. This was notably true in respect to his unsparing assaults on 
the administration of John Tyler. In Kentucky, however, as well as 
elsewhere, he had a host of friends who neither demurred to, nor 



HARDIN AND CLAY CONTRASTED. 






WW «•' 




tk. 



...<t: 



appealed from, his autocratic fiats. These were true courtiers, from 
whom he heard nothing but what was pleasant. Thi »od nearer 

to him than Mr. Hardin, which the latter always knew. 

Between these two great Kentuckians there were antagonism oi 
character and sentiment that never could be entirely removed or har- 
monized. The first difficulty was the strong and clearly marked 
individuality of each. Each was an original, and accustome I intel- 
lectually and morally to stand alone. Both wen- forcible think* 
and each thought for himself. Each possessed a powerful will, tin- 
mainspring of great men. Clay was a born leader, while, if noi a 
leader, Hardin was not the least a follower. In no political system 
would he shine with li^ht bor- 
rowed from any central sun. II- 1 
lustrating this trait, he said " he g 
had prescribed the rule to himself I 
never to listen to a man speaking 1 
on the same side of a question 1 
on which he intended to speak, I 
lest his own ideas should lose i 
their original cast and symmetry." | 
They both belonged to, and each 1 
were ornaments of, the same pro- 1 
fession, but Clay was a political 1 
lawyer, while Hardin was a legal I 
politician. One was a politician | 
in the court-house, and the other | 
a lawyer in Congress. Both were I 
self-reliant and confident, but, henry clay. 

while the overweening confidence of Clay betrayed him into oxer- 
looking or underestimating the difficulty of his schemes and the power 
of his opponents,* Hardin more wisely undertook nothing that was 
hopeless, and only that which might reasonably be attained. Har 
din was the superior in forecast. 

Clay had many of the attributes of the courtier, and especially that 
social tact and power that are such important elements of political suc- 
cess. He possessed that suavity and grace of manner that giv< 
genius an added charm — that indefinable air o\ tin- cosmopolite which 
places him en rapport with "the brotherhood of man. " A happy illus- 
tration of Mr. Clay's S7<aviter in modo is an incident relat d of his sen 
atorial life. After the admission of Arkansas, its senators differed in 

* Says General Preston : " When Mr. Clay was in doubt about what course to pursue, he acted on 
the principle of Hoyle, and took the trick." 




350 



BEN HARDIN. 



pronunciation of the name of their constituent, one calling it as spelled, 
the other Arkansaw. When Mr. Clay happened in the President's 
chair, he varied his pronunciation of Rackensack to suit the views of 
each cf the honorable gentlemen. 

On the other hand, although of excellent colloquial powers, Mr. 
Hardin had often the manner of a philosophic cynic, with an unmis- 
takable touch of provincialism. Hardin was the superior lawyer, Clay 
the greater statesman. No attempt will be made to contrast their ora- 
torical powers, which in many respects were entirely dissimilar. 

While they stood shoulder to shoulder in face of the common enemy 
they were not in entire political accord. In ante-bellum days a shade, 
not always clearly defined, divided the Whigs — a distinction that in 
later times has faded from all parties. Among the earliest Republi- 
can theories was incorporated the idea that the landholder should 
enjoy rights, powers, and privileges superior to his landless neighbor. 
Such were the teachings of the liberty-loving Hampden and the phil- 
osophic Sidney. The ancestors of the Virginians brought the seeds 
of this doctrine with them across the ocean, and it outcropped in many 
of their laws. For example, the right of suffrage was confined to free- 
holders in that State long after American independence. The under- 
lying reason for this doctrine was that the landholder, depending on 
Government to secure his right, could better be trusted as its supporter 
and friend than he who could fold his tent in the night and with all his 
possessions hie away to greener pastures or more peaceful retreats. 
These land-holding Republicans were designated as the "Silver-gray" 
Whigs by some ; and though he was not, in acting, at all times con- 
sistent with that theory, such was Mr. Hardin in sentiment. 

In almost every conflict between the agricultural and manufacturing 
and commercial classes, he advocated the superior rights of the former. 
Mr. Clay, on the other hand, for the greater part of his life was a rad- 
ical Whig, who acted on the theory that the all-sufficient guaranty of 
republican government was the virtue of the people, the whole peo- 
ple, of every class and pursuit. While this distinction was little more 
than a theory, in effect it led Hardin to favor that which promoted the 
interest of the agricultural section of the country — the slave-holding 
South — while Mr. Clay gravitated in a contrary direction. Hence, it 
seemed a matter of course for Clay to oppose the annexation of Texas, 
and equally so for Hardin to favor it. Replying to the author's query 
as to the nature of the relations between Mr. Hardin and Mr. Clay, 
Hon. Martin D. McHenry, of Iowa, writes as follows: 






CAMPAIGN OF 1 844. 35 1 

" There have been some passages in debate between Mr. Hardin and Mr. 
Clay, that for the occasion were racy and exciting, bul I know thai long 
years afterward they were on the very kindest terms. In 1.S44 Mr. Hardin 
and myself attended a Whig convention in Lexington. We left our saddle 
horses at Frankfort, and went upon the railroad car, then drawn by h'>: 
Just as we went to our bed-room, after the convention closed, Henry L 
Jr., called upon us with a kind and pressing invitation from his father to dine 
with him in company with other friends the next day. We both had to 
decline with regret, as we were to go to Frankfort to breakfast, and from 
there, Mr. Hardin to an appointment he had made to speak in Anderson 
county, and I to one I had made in Shelby, near the Henry line. We, in 
substance, sent our regrets, and told Henry to tell his father that, while his 
other friends were discussing his viands, we would be discussing his merits 
before the people." 

Mr. Hardin's labors during the campaign were great and powerful 
in effect. The contest was hotly maintained on both sides, in Ken- 
tucky, and Hardin bowed his crest to no competitor. 

"I heard Ben Hardin, in 1844, make a public speech at Elizabethtown," 
says Hon. Alexander Craycroft. " I was quite young — not mature enough 
to sufficiently appreciate its merits. Rowan Hardin had spoken in the 
morning — his father followed in the afternoon. One passage in Mr. II > 
din's speech yet lingers in my memory: ; Polk had spent his life like a little 
black-jack in the depth of the forest, secured by his own insignificance from 
the danger of storm and tempest. He had passed it with no higher ambi- 
tion, and seeking no greater pleasure, than he could find on the shores of 
Duck river, while Henry Clay had walked the mountain tops for half a 
century — like a giant, baring his breast to every storm, and leaving his 
prints in the living rock ! ' " 

On another occasion he closed a speech of marvelous power and 
eloquence with this glowing sentence: "Elect Mr. Clay, and, like 
Simeon of old, I will be ready to depart in peace, mine eyes having 
seen my country's salvation ! " 

These meager specimens must be accepted as some hint of the 
tone and spirit of his speeches in the campaign — reports of which 
were rare in that day. Kentucky proved herself faithful to her great 
son at the election, and the credit was in part due to Mr. Hardin's tir 
less efforts. Nevertheless, the result was the overwhelming defeat of 
Mr. Clay. With that defeat ended for him every reasonable prospect 
of reaching the presidency. After that campaign, Mr. Hardin never 
took conspicuous part in a presidential election, and there practically 
terminated his active participation in national politics. 



152 



BEN HARDIN. 



CHAPTER XXV. 

SOME THINGS MR. HARDIN THOUGHT AND SAID OF OTHERS. 

WHILE Mr. Hardin was eminently a man of the people, in hearty 
sympathy with the honest sentiments and simple tastes of the 
masses, yet he entertained a just estimate and appreciation of the tal- 
ents of the great men who were his contemporaries, or whose names 
and fame were connected with the history of his country. " It has 
been a great desideratum with me," he once remarked, "in reading 
the debates of the Virginia convention, and the debates of the con- 
vention that made the Constitution of the United States, to know the 
particular history and description of the men who figured in those 
conventions. If I ever worried a gentleman in my life it was Mr. 
Madison when I first went to Congress to get from him the personal 
anecdotes and reminiscences of the incidents of the time of the for- 
mation of the Federal Constitution with which his mind was well 
stored." 

Mr. Hardin's opportunities for observing the eminent men of his 
generation — a generation notably fruitful of talent — had been excep- 
tional. His long public service in State and National councils, 
coupled with his own prominence in every body to which he belonged, 
brought him in contact or association with the brightest men in pub- 
lic life. In 1849 ne sa 'd- "I have been personally acquainted with 
every distinguished man, I believe, who has figured in public life from 
the year 181 5 up to this time." This opportunity for observation, 
coupled with his excellent judgment of character and talent, render 
his deliberate opinions of especial value. 

Before Horace Greeley had advised the ' ' young man " to " go west " 
ex-President Buchanan forsook his Pennsylvania home and came to 
Kentucky. "I recollect very well," said Mr. Hardin, in 1849, "that 
some thirty-seven or thirty-eight years ago the celebrated James Buch- 
anan, late secretary of State under Mr. Polk, commenced the practice 
of law in the town of Elizabeth. There I became acquainted with him, 
and at that time I discovered in him a man of fine education and 
respectable talents. In the course of a few months he began to look 
unhappy, and as if he was experiencing some disappointment. His 



RUFUS CIIOATK. 






father had given him a large landed estate in Hardin county, about 
which there was some difficulty. At length he made me his attorney 
at law and attorney in fact, and went back and settled in Pennsyl- 
vania, where he was raised. Ten or fifteen years afterward I met him 
in Congress, and over and over again have we laughed when he told 
me this story : 

"I went to Kentucky," said he, "expecting to be a qreat man 
there, but every lawyer I met at the bar was my equal, and more than 
half of them my superiors, so I gave it up." 

Rufus Choate, of Massachusetts, was Mr. Hardin's colleague in the 
Twenty-third Congress, and won national fame as an orator by his 
efforts at that period. Hardin greatly admired him. Mr. Choate made 
a characteristic and eloquent speech on the subject of the removal of 
the deposits, one of the exciting questions during General Jackson"-, 
administration. " It was with relation to this speech," said Mr. Brown, 
in his biography of the Massachusetts statesman, " that the anecdote 
is told of Benjamin Hardin, 'old Ben Hardin,' as he was called, of 
Kentucky, who then heard Mr. Choate for the first time. I give it 
in the words of one who was present. Mr. Hardin was an old stage r 
in politics. A strong-minded, though somewhat rough, individual, 
who was not disposed to much leniency in his criticisms of younger 
members, he was, like Mr. Choate. Whig in politics ; and some days 
after the speech of Mr. Choate he made an elaborate argument on the 
same question and on the same side." 

"In this discussion," remarked Mr. Hardin, "I have observed a 
rule which I prescribed to myself twenty-five years ago, that is, never 
to listen to a man speaking on the same side of a question I am on, 
whom I am to follow ; because if I did I would fall into his mode of 
expression, and my ideas would lose their original cast and symmetry. 
In observing this rule one exception has occurred in this debate. 
When the gentleman from Massachusetts (Mr. Choate) took the floor 
a day or two ago, I determined to remain in my seat a few moments 
and hear the plan of his argument unfolded, but in a moment or two 
it became too late to leave my place. I was charmed, spellbound, 
and never moved until he had concluded his speech. I felicitate my 
on having heard him, for never did anv orator furnish his auditors 
with a richer intellectual feast or one more pleasing to the finer p 
sions of the heart. For strength and vigor of argument it has not been 
excelled in this House; and for all ornaments which decorate an argu- 
ment — style, imagery, and melody of voice — I never heard its equal." 

i 23 



354 BEN HARDIN. 

Hon. S. S. Cox, in alluding to the effect of this speech on Hardin, 
says: "The large-hearted and broad-humored Kentuckian threaded 
delightfully the labyrinthine beauty of Choate's rhetoric, and saw- 
something in the legal dialectician and in the Gothic style of his mul- 
tifarious oratory that enamored him by a witchery beyond the reach 

of art." 

It was in a debate with Mr. Clay in Congress in 1816 that Hardin 
won the soubriquet of "Kitchen Knife." That "Kitchen Knife" 
having been used on Mr. Clay, there was a consequent diminution of 
cordiality between the two. The extent of the estrangement or its 
duration is unknown. When, however, after the election of John 
Ouincy Adams, Mr. Clay was assailed by the calumnious charge of 
bargain and intrigue, Mr. Hardin became his zealous defender. He 
was prompted partly by State pride and partly by his belief that the 
charge was slanderous. 

Mr. Clay brooked no rivalry, especially among the Whig politicians 
of Kentucky. So autocratic was he that the amiable Crittenden 
more than once had a personal breach with him. Mr. Hardin regarded 
Mr. Clay's conduct among his Whig colleagues as tyrannical and over- 
bearing. While the Whig party was still a great political force, Mr. 
Hardin remarked that Mr. Clay would grind it to dust by his domi- 
neering spirit. Mr. Hardin was not alone in his distrust of Mr. Clay's 
leadership. Governor John Pope, on one occasion (after uniting 
with the Whig party), was discussing the result of the Harrisburg 
convention of 1840 in which Mr. Clay was defeated for the presi- 
dential nomination, and in reply to a question as to what would have 
been the result of Mr. Clay's success, he said: "We should have 
witnessed in America all the extravagancies of the Bonaparte dynasty, 
and hazarded all the calamities it brought upon France." Said Tom 
Marshall : " Death, tribute, or the Koran was his motto." 

Mr. Webster, with less will-power than Mr. Clay, and at all times 
dutifully following the latter's leadership, in some respects was a 
stronger man. Webster, though less impassioned in his oratory, was 
by a warm nature drawn personally nearer his friends than Mr. Clay 
to his. Webster was loved, while as to Clay love was more largely 
mixed with admiration. 

Mr. Hardin was inclined to measure Mr. Clay from a professional 
standpoint. Too proud to admit himself an inferior in any arena, he 
especially felt himself Mr. Clay's superior in lawyership. Yet he was 
far from seeking to elevate himself by depreciating the great states- 



WEBSTER ADAMS — CRAWFORD. 

man — and honestly admired and on many occasions testified to his 
talents. He esteemed the great " Commoner,*' not only as a law 
and statesman, but also as a skillful manipulator of short cards. ] | ( 
said he had often played cards with Mr. Clay, but always on his side, 
carefully avoiding ever becoming his adversary. 

Whatever may have been the inner personal relations between 
Clay and Hardin, it is certain that the latter was attached to .Mr. 
Webster, and highly appreciated his great ability. " I recollect the 
first time I ever saw Daniel Webster and heard him speak," said Mr. 
Hardin, within a year or two of Webster's death. "The conversa- 
tion he and I had about it we have laughed over twenty times since. 
He started off in his speech as cold as an icicle, and as pure as if it 
hung from the temple of the maiden goddess Diana. His language 
was pure, but his manner cold. I remarked to him: 'Sir, if you 
will come and settle in Kentucky, and learn our mode of speaking, 
you will be an orator equal to any Greece or Rome ever produced.' 
The last time I saw him, he said : ' Would to God I had taken your 
advice.' " 

John Quincy Adams was a cold man, without warm personal 
friends or social feeling. Mr. Hardin and he were so entirely dissim- 
ilar that antipathy early took the place of indifference. The form r. 
in a speech in Congress, apologized for voting for Adams in 1828 : " I 
supported John Quincy Adams' election because his defeat was based 
on proving bargain, sale, and corruption against six or seven of the 
best men in Kentucky, and I was determined to stand up for Ken- 
tucky. I supported him, however, with tears in my eyes." Mr. 
Hardin and Governor John Pope were rivals in the local politics of 
Kentucky. Adams and Pope were brothers-in-law, having married a 
couple of handsome English girls who were sisters. This circum- 
stance must not be overlooked in estimating Hardin's opinion of 
Adams. 

While Mr. Crawford was secretary of the treasury in Mr. Mon- 
roe's cabinet, mismanagement of that department was charged by 
Mr. Cook, an Illinois Congressman. In the course of his reply to 
remarks by Cook, Mr. Hardin, alluding to Crawford, said : " I have 
the utmost confidence in that officer — as much as I can have in any 
man, and in the correctness of his conduct." This estimate of Craw- 
ford was very just. The impression to be gathered of him from many 
concurrent sources is, that he was a big-brained, large-bodied, great- 
hearted man, who deserved a better fate than befell him. 



BEN HARDIN. 



356. 

Mr. Hardin early formed an attachment for William T. Barry, of 
Kentucky, which no time or vicissitude weakened. Barry and he had 
been on opposite sides in the old and new court struggle. Afterward 
they widely diverged politically, the former casting his fortunes with 
General Jackson and his friends. When Jackson became President, 
Barry received the appointment of postmaster-general. Under Bar- 
ry's administration his department was charged with many short-com- 
ings, abuses, and irregularities by the Whigs. Hardin called atten- 
tion to many of these things in a speech in Congress — but at the same 
time vindicated Barry. "While I am on this point," said he, "I 
will declare once for all, that I believe whenever the postmaster-gen- 
eral leaves that department, he will go out with clean hands, unstained 
and uncontaminated with plunder. However others may enrich 
themselves with the spoils of that department, individually, he will 
o-ain no profit, except the salary allowed by law. I have known that 
gentleman for thirty years, occasionally have met him at the bar, and 
served with him in Congress. I have no doubt of his honesty. He 
is a man of talents, and has rich and choice gifts as an orator, but he 
is a child as to the wiles of man, and the tricks and artifices of the 
world. He has been the dupe of all parties to which he ever belonged, 
and the dupe of every cunning knave that he had anything to do with, 
either individually or officially. To this artless simplicity of his, to 
his incapacity to say no to the importunities and entreaties of those 
he has been connected with, is to be attributed the present derange- 
ment of the department over which he presides." 

A year after this utterance Barry ended his earthly career in a for- 
eign land, mourned by all parties. 

In 1834, Mr. Hardin said of John J. Crittenden, that he was "infe- 
rior to no man in America as a profound lawyer and eloquent orator, 
and was of as pure and incorruptible integrity as any man who ever 
lived." Within a year of his own death, in a touching way, Mr. 
Hardin referred to his continued high opinion and regard for Mr. 
Crittenden.* 

The story of Benjamin Sebastian is one of the most interesting and 
unique in the history of Kentucky. From Marshall down to the 
latest historian it has been the fashion to denounce him as the enemy 
of his country. The complaint made by Mr. Hardin was, that while 
Sebastian may have done that which was not to be justified, yet, never- 
theless, he had proved himself a public benefactor, and it was ingratitude 
not to recognize his services. Mr. Shaler says Sebastian was a native 

* See chapter XXXVII. 



BENJAMIN SEBASTIAN. 357 

of Great Britain, though on what authority the statement is made is 
not known. He was educated as a Church of England clergyman in 
this country, and went to England for holy orders. As early as 1785 
he had returned to America, and was a citizen of Jefferson county, 
where he was engaged in practicing law. In 1785, 1787, [788, and 
1792, he was a member of the respective conventions that assembled 
in each of those years, having for their object the formation of a new 
State. On the admission of Kentucky he became an associate justice 
of the Court of Appeals. This office he held until his resignation in 
1806, after which he resided at Falls of Rough, in Grayson county, 
where he spent the close of his life. For many years prior to the 
purchase of Louisiana by President Jefferson, in 1805, the Spanish 
government had possession and control of that territory. The Mis- 
sissippi river was the only practicable outlet at that day for the prod- 
ucts of the western country, it being the highway to markets in New 
Orleans, the West Indies, and Europe. But there was no commercial 
treaty between the United States and Spain, and the latter Government 
levied most ruinous exactions under guise of import and export 
duties. 

It was complained in the West that the Federal Government neg 
lected the welfare of the people west of the Alleghenies, in not afford- 
ing better protection (for a period at least) against Indian hostilities, 
and later in allowing the Spanish Government to oppress them with 
import and export duties in getting to and from market. As to the 
Indians, it is well known that for the most part the frontier settlements 
were allowed by the Federal Government to shift for themselves. 
This they did quite successfully. On the same principle they sou-lit 
to make terms with the Spanish Government touching their trade 
down the Mississippi. At the same time the people of the West were 
agitated with views of this kind, undoubtedly the Spaniard hoped to 
form alliances that would ultimately detach Kentucky and some con- 
siderable part of the north-west territory from the Atlantic republic. 

Overtures first came from the Spaniards, and the West in its dilemma 
listened to them. Sebastian and others, acting by approbation of the 
people generally, met the authorities of Spain and negotiated a tr 
or arrangement, whereby exports and imports were allowed to pa 
to and from New Orleans by payment of a light tariff. This airan 
ment, effected mainly through Sebastian, saved hundreds of thousands 
of dollars to Kentucky and brought an influx of great prosperity. 
Spain, it may be assumed, intended this act of grace as a step toward 



358 BEN HARDIN. 

separation of the Western country from the Atlantic States, and an 
alliance more or less close with herself. The Western people were 
not a little embarrassed at this period. However content they were 
to remain a part of the United States, yet they could not afford to 
break their kind relations with Spain. To do so was commercial and 
financial ruin. It was the clear policy of those who undertook to rep- 
resent the people to preserve the semblance of friendship for the Span- 
iard, and allow the latter to believe that what he hoped might transpire. 

Sebastian had undertaken to act for Kentucky, and whether he ever 
contemplated doing more than was done may be doubted. Wilkinson 
may have had larger designs, but there is no proof of Sebastian's con- 
nection with them. If he did receive a pension from the Spanish gov- 
ernment for services performed or promised (as charged), it was an 
impropriety that would have been winked at in Kentucky at any time 
during John Adams' administration, and earlier. The supposed pen- 
sion may, after all, have been a bonus received by him for his share 
of profits by certain traders under commercial arrangements negotiated 
by him. Conceding that the Spanish government paid him two thou- 
sand dollars per year, it by no means follows that it was a pension. 
But in 1797 the Court of Appeals, composed of Muter, Wallace, and 
Sebastian, had decided that all entries which did not describe the land 
entered, so as to identify it, were void for uncertainty. As this decis- 
ion rendered nugatory a large number of land titles, great excitement 
resulted, and the judges of the Court of Appeals were regarded by 
many people as public enemies. This was the beginning of Sebastian's 
misfortunes. 

After the Burr conspiracy had exploded, those who had inaug- 
urated prosecution against Burr cast around for some object of attack, 
and, in default of others, fell on Sebastian. Ten years before, public 
sentiment would have protected the man who had secured the people 
the commercial advantages under the Spanish arrangement. But 
now that the Louisiana Territory belonged to the United States, 
Sebastian's services were forgotten, and he was delivered over to his 
enemies. The proverbial ingratitude of Republics had here another 
illustration. He was attacked by the Legislature, and steps were 
being taken for his removal from office. Arraigned by his enemies 
and abandoned by his friends, he succumbed to the storm and 
resigned. 

Mr. Hardin always believed that he was unjustly and ungratefully 
treated, and often announced his purpose to write a book in his vindi- 



SEBASTIAN DEFENDED. 






cation. Harry Innis, George Nicholas, and William Murray v 
implicated with Sebastian, and, so far as culpability goes, seem in 
little better state, but they were men of greater personal influence by 
reason of family ties, and, besides and mainly, neither of them had 
declared and held that uncertain land entries were void. Ex< 
that Sebastian received a pension, or was supposed to have done so, 
his case and that of Innis, Nicholas, etc., are not to be distinguished. 
Historians have distinguished between their cases and Sebastian's 
more or less unsatisfactorily, but all have concurred in heaping con- 
tumely on the latter. He was made the scapegoat for the sins of 
hundreds of leading men in Kentucky who had been similarly impru- 
dent. With this prelude, the reader will understand the following 
expressions by Mr. Hardin : 

"These two duties, the import and export, were too heavy and 
oppressive. Kentucky could not bear them, and the government of the United 
States failed to obtain better terms and conditions from Spain. The people 
of Kentucky were much excited on this subject during the years 1793, 
1794, and 1795. In 1795, the leading men in Kentucky sent the late 
Judge Sebastian to Orleans to obtain from the governor of Orleans a reduc- 
tion in these duties, and to procure better terms and conditions in our com- 
mercial intercourse with Spain. I have said, and I repeat it, that the first 
men in Kentucky, great, too, as any in America, concurred in sending 
Judge Sebastian to Orleans to make those commercial arrangements with 
Spain. 

"The original papers connected with that transaction were given to me 
near twenty years ago, either by Judge Sebastian himself, or his son. 1 >r. 
Charles Sebastian. I have some of them now in my hand — one signed by 
George Nicholas, Harry Innis, William Murray, and Benjamin Sebastian — 
declaring the necessity of such a treaty, and appointing Sebastian to make 
and conclude such a treaty or commercial arrangement as the necessities 
required. I have also a copy of the treaty in the handwriting of Judge 
Sebastian. The signatures of George Nicholas, Harry Innis. William Mur- 
ray, and Benjamin Sebastian are genuine. I have shown them to their 
acquaintances and relations, and they recognize their respective signatures. 
I also have a paper of a similar character, signed by near one hundred gen- 
tlemen of Kentucky, to the same import, or nearly so. I can not now lay 
my hands upon it. If it is not mislaid, I have it at home. Sebastian went 
to Orleans, and in pursuance of his instructions he made the treaty. It 
reduced the import duty to four per cent., and took off the export entirely; 
nay, the treaty went further; we had the permission to trade to all Spanish 
America on the same terms. It is the best commercial treaty we ever had 
with Spain. 



360 BEN HARDIN. 

"I am, Mr. President, greatly rejoiced that I have this opportunity to 
vindicate the names, characters, and memories of the illustrious men who 
figured in this country in the days of other years — days that tried the souls 
of men — men who have been slandered by some of the histories of this 
country, in which they are branded as traitors and Spanish conspirators — 
men that I feel proud of, and so ought my country to be proud of. Thirty 
or forty years ago I knew most of them. I see in my mind and can recollect 
exactly how they looked. They then had the aged and venerable appearance 
of the senators of Rome, seated in the Senate chamber, when the Gauls took 
and destroyed the city. * * * * * * 

"Kentucky enjoyed the benefits of the regulations made by Sebastian 
until Spain transferred that country to France, and France to the United 
States ; and after enjoying the benefits of Sebastian's labors for years, when 
the necessities for those regulations had passed away Kentucky for a time for- 
got his services, and the whole Legislature attacked him in 1806. Those that 
sent him who were alive — for some were dead — gave him no aid or assist- 
ance, and he sank under the assault and fell a victim to the rage of popular 
fury. 1 trust in God that the present generation will do his memory justice 
for the consolation of his posterity." 



WILLIAM OWSLEY. 




CHAPTER XXVI. 

A QUESTION OF PREROGATIVE. 

iNE of the most remarkable contests that ever occurred in K 
tucky — remarkable for its nature, parties engaged, and its result 
— was that which occurred in 1847, between Governor William ( Jus- 
ley and Mr. Hardin, his secretary of State. For alleged grounds, 
the governor attempted to remove that official and supplant him with 
another. When the confirmation of the latter was sought, Mr. Har- 
din appeared before the Senate in opposition. The struggle that 
ensued was without precedent, and has since been without parallel in 
State history. 

Of William Owsley, mention has been made in former pages, 
especially in those chapters relating to the "old and new court" 
controversy. He was conspicuous at that period, not so much by 
his talents as because he was associate judge of the "old " Court of 
Appeals, which the Legislature sought to abolish, and in its stead 
establish the "new." Possessed of sterling virtues, yet he was defi- 
cient in those lighter graces that aid or ensure political success. His 
unyielding adherence to principles which he deemed just, in face of 
popular clamor, while befitting the judicial office, was attributed to a 
tyrannical disposition. He was called a cold man, whose very virtue 
was construed a failing, in that it prevented sympathy for the failings 
of others. While regarded as a sound lawyer, he was not esteemed a 
great one, or by any means the equal of Boyle, the chief-justice. At the 
bar — before and after — he had been successful, and he had served 
with credit in the State Legislature, but to his judicial career he owed 
that character and standing that had chiefly given color to his aspira- 
tions to the chief magistracy of the State. After resigning his jud 
ship he was renominated, but. as stated elsewhere, rejected by the 
Senate. He then resumed the practice of his profession, gave atten- 
tion to a handsome estate, served a term in the State Senate, and also 
as secretary of State, under Governor James T. Morehead. Such had 
been his career up to the year 1843. That year he aspired to sua 
Robert P. Letcher in the gubernatorial chair. Being a Whig, he 
sought the nomination of his party. To this end, he and his friends 



362 BEN HARDIN. 

took such steps as they might to secure the favorable action of the 
county primary meetings. The aid of prominent politicians in vari- 
ous localities and the favorable consideration of the public press 
were duly invoked. The canvass that ensued may have had more 
dignity, but was not entirely free from some of the blemishes that 
had marked many such episodes before, to say nothing of those more 
recent. 

Mr. Hardin and Judge Owsley had known each other and been 
friends for nearly forty years. They had served together in both 
houses of the State Legislature, and in the "old and new" court con- 
troversy no one had done more valiant and efficient service for the 
old judges than Mr. Hardin. Under such circumstances Judge Ows- 
ley not unnaturally expected the support of his old friend. Besides 
they lived in the same section of the State, and had, on this account, 
common interests and many neighborly affinities. 

Mr. Hardin was disposed to favor the ambition of Owsley, not so 
much for the reasons mentioned, as for another. Abuses injurious to 
the public welfare had crept into the Whig party. That party had 
been continuously in power in the State for many years. The great 
majority of all offices were filled by appointment, the power of the 
governor in this respect being very extensive under the then existing 
Constitution. The principle that " to the victor belongs the spoils " 
had been imported from national politics. In some localities, to find 
fit incumbents of the Whig party to fill local offices, by no means 
afforded an opportunity for a competent Democrat. Whigs, and 
Whigs only, held offices which a Whig governor could bestow. Mr. 
Hardin — faithful to the principles of his party though he was — 
regarded this as an evil and a reproach that demanded remedy. The 
Whig party was in the majority, but not so preponderantly as that it 
could defy the minority when the latter had the better of the argu- 
ment. Aside from the mere interest of party, there were many who 
believed that no party could rightfully sacrifice the public welfare to 
promote its own success. Of this class was Mr. Hardin. 

When solicited by Judge Owsley for his support, he explained his 
views in regard to the policy which he thought should control the 
appointing power, saying he would support no one unpledged to carry 
out that policy. Judge Owsley did so pledge himself, and also author- 
ized that fact to be communicated by Mr. Hardin to his friends and 
the public. Judge Owsley's reputation for unshaken firmness and 
unswerving integrity encouraged the belief that his election would 



WHY MR. HARDIN BECAME SECRETARY. 

secure the execution of reforms beyond all peradventure, and thus 
make his own a shining contrast to previous Whig administratis 

With such assurances Mr. Hardin went forth the champion of his 
old friend. Primary meetings in Nelson and adjoining counties w< re 
held under his auspices, and instructions favoring Owsley were 
adopted. As elector on the Clay ticket he made speeches in many 
counties, and in these likewise procured meetings to be held, and the 
vote favorably instructed. His son, Rowan, not only made spe< ches 
but devoted a newspaper, of which he was editor, to the good cm 
As the result of so much diligence and effort, at the Whig convention 
at Louisville, in 1844, William Owsley was nominated for governor. 

Yet, a Whig nomination at that period was not necessarily elec- 
tion. The Democrats had for their candidate General William O. But- 
ler, a man of high character, with an honorable record as a soldier of 
the war of 18 12. Then, as since, to Kentuckians, no less than to the 
American people generally, there was an attractive glamor about a 
successful soldier. The friends of the Whig candidate realized the 
need of exertion, and were active. Mr. Hardin worked like a Tro- 
jan. It was a favorable circumstance that Mr. Clav was a candidate 
that year for the presidency. Not one could arouse the party in Ken- 
tucky like the " Great Harry." With all effort, however, and all fav- 
oring circumstances, while Governor Owsley was elected it was by a 
diminution of the party vote of five thousand. 

Shortly after the election Mr. Hardin wrote Governor Owsley, sug- 
gesting his willingness to accept the office of secretary of State. As 
to his motive in seeking this appointment, perhaps State Senator 
Francis Peyton, of Breckinridge county, was not far wrong, to say the 
least, when he spoke as follows in the Senate on the subject : 

"It is a matter of public notoriety that hefore Mr. Hardin solicited and 
obtained the office he had met with a misfortune in having his right hand 
so injured that he wrote with great difficulty and in so bad a manner that his 
writing could scarcely be read; that his habits of active life wholly unsuit 
him for the drudgery of secretary; that it was his intention, in good faith, to 
desert an extensive practice in a large circuit worth perhaps two or thi 
thousand dollars per annum, and set himself down at Frankfort, as a scril 
at the pitiful salary of seven hundred and fifty dollars per annum, is bi 
by none who know him. His own good judgment and saving attention 
his individual concerns forbids the idea that he ever expected or intended 
perform the duties of the office in person. Indeed, lie lias often declared 
that he expected to perform most of the duties by deputy. The true secret 



3<H 



BEN HARDIN. 



of Mr. Hardin's anxiety to obtain this office in the first instance will, I have 
no doubt, be found in the fact that he had high hopes at that time of being 
elected to the Senate of the United States. The office would necessarily 
throw him in contact with members of the Legislature, and thus the way 
might be paved for the accomplishment of the great purpose of his life." 

To Mr. Hardin's letter the governor elect responded in a prompt 
and hearty way tendering him the secretaryship. The signal service 
he had rendered in the governor's election, coupled with his great 
talents and high rank with the masses of his party, made this action 
extremely appropriate. But the governor had other political friends 
who, although they had not done him the service, were as wise as Mr. 
Hardin. Discerning the motive of the latter in seeking a post at the 
State capital, they began sapping and mining. They represented 
to the governor that the appointment was unwise — unwise chiefly 
because they opposed it ; and they opposed it because in making their 
political slates Mr. Hardin's name had no place, and, least of all, no 
place in connection with the highest party honor, the United States 
Senate. The governor referred to these opponents subsequently as 
composed of his Lexington friends. 

It is more than probable that a want of better understanding with 
a coterie of Lexington politicians of that period was unfortunate for 
Mr. Hardin. Mr. Clay was regarded as the center and source of light 
in the political system of Kentucky. While a great leader, he was an 
imperious ruler of his followers. Those who were most loyal were 
strongest in favor, and these looked askance at the contumacious 
Whig who neither asked nor granted favors — such a one was Mr. 
Hardin. To extreme partisans — the Lexington coterie was composed 
of such — the intimation that a Whig governor should appoint the 
"best men" to office, regardless of party affiliation, was downright 
treason. That such a one should seek and possibly win the highest 
honor his State could confer was not to be thought of. So it was 
Governor Owsley wrote Mr. Hardin that his Lexington friends advised 
against his appointment, and he suggested that on this account, and 
for harmony, he decline it. To this letter there was no reply. This 
ominous silence impressed the governor and his friends more than pro- 
tests or reproaches could have done. Another letter was shortly after- 
ward written saying that the appointment would be made, and on the 
governor's installation it was made. 

In September, 1844, he was commissioned and sworn, and at the 
instance of the governor he appointed as his assistant Abram S. Mitch- 



KING HENRY AND WOLSELEY. 365 

ell, editor of the Danville Tribune, the governor's organ. On the 
assembling of the Legislature Mr. Hardin was nominated to the Sen 
ate as secretary of State and unanimously confirmed. Inning the 
sitting of the Legislature he was prompt and diligent in the discharge 
of official duties. At other times he was occasionally absent attend- 
ing to his law practice. He removed his extensive library to Frank- 
fort and opened a law office there, and expressed the intention "I 
likewise removing his family. This latter was prevented by having 
unexpectedly devolved on him* the care of the children of a sick daugh- 
ter and an absent son. So it was that Mrs. Hardin remained at the 
homestead at Bardstown. Ordinarily the duties of secretary of State 
are mostly clerical in their nature, and there was little to distinguish 
Mr. Hardin's official career from that of his predecessors. A secre- 
tary might be consulted by the governor on any question of difficulty 
or importance, but these consultations were much a matter of cour- 
tesy, and their omission was no breach of official etiquette. It might 
have reasonably been supposed that a relation involving such little 
friction would have worked with monotonous smoothness, especially 
between ancient friends, but the stormy sequel proved far otherwise. 
There is little doubt that some of those who had opposed his 
appointment subsequently employed their influence and management 
to produce causes that would effect his resignation or removal. There 
was such dissimilarity of temper, habits, and tastes between the gov- 
ernor and his secretary as that in close contact there could be little- 
sympathy between them. The former was punctilious in dress and 
deportment, and the freedom of his manners was restrained by a dig- 
nified courtliness. In short, his bearing was that of an ancient patri- 
cian, conscious of the honors resting upon him, and yet he by no 
means meant anything more than a decent observance of the proprie- 
ties of his position. He felt that he owed this much to his fellow- 
citizens — to his State — to himself. There was not a little in Mr. Har- 
din's character antipodal to all this, and the reader will not be at a 
loss in making the contrast. Doubtless the governor had uncon- 
sciously been imbued with a feeling of antipathy to his old friend. 
While others about him were coating unpleasant facts and occurrences 
with flattery, Hardin thoughtlessly, or perversely, neglected such pre- 
cautions. On the other hand, his frequent protests against appoint- 
ments were so many friendly but disagreeable condemnations of the 
administration. The feeling was not unlike that between King Henry 
and Wolseley, when the cardinal had grown too great. 



366 BEN HARDIN. 

A wayside tavern in Grayson county, on the road leading from 
Elizabethtown to Litchfield, had long been a stopping-place of Mr. 
Hardin as he journeyed to and from the courts. He had known the 
family of his host while his offspring giew from childhood to maturity. 
After Mr. Hardin became secretary of State, his friendly offices were 
sought to obtain for a daughter of his host a position in Frankfort, 
where she might be taught the business of a milliner. This he did. 
Scandal-mongers, ever on the lookout, and the enemies of Mr. Har- 
din about Frankfort, seeking a pretext, feigned to find another motive 
for his actions, and unblushingly charged that the ruin of the young 
woman was intended. The very enormity of the charge excited such 
indignation as to unfit those who heard it from inquiring as to its 
truth. 

That he acted otherwise than faithful to his trust was not believed 
by those best qualified to judge. Those who would have been injured 
by such base treachery never gave credence to it, and friendly relations 
with Mr. Hardin were never disturbed. Yet out of this circumstance 
"a hundred rumors were put in circulation about Frankfort, calcu- 
lated," says Colonel J. P. Barbour, " to excite the most bitter preju- 
dice against him ; and upon his return, about midsummer, to that 
city, he found these prejudices and misrepresentations culminating in 
a mob of irate persons parading the streets and threatening him with 
personal violence of the most degrading character, if not with death. 
By the aid of his friends, Charles S. Morehead and James Davidson, 
a method of escape was planned and executed, and he miraculously, 
almost, made a safe retreat from the violence of his enemies. He had 
hardly reached home when he found the newspapers of the State 
filled with garbled and untruthful statements of the facts in the case, 
and the whole country penetrated with the most extreme excitement 
against him. He published a short appeal in the public journals, ask- 
ing a suspension of public judgment until he could be heard." 

For awhile he was a victim of a bitter public sentiment at the 
State capital. He had many faithful friends there, however, who 
remained true to him through evil as well as good report. But the 
governor's household were not of these. He was notified that he 
would be unwelcome at the "mansion," and would not be invited 
there. I 7 or awhile the governor gave him the cut direct, because he 
had heard Mr. Hardin had spoken of him disrespectfully, but in Jan- 
uary, 1846,3 better understanding was had, and apparently cordial 
relations restored. Yet, after that period, in making appointments, 



MR. HARDIN REMOVED AS ETARY. 367 

the governor did not consult him, but did advise with his assistant, 
Mitchell. If Mr. Hardin recommended anyone, it was said to be the 
signal for his rejection. 

The governor felt his secretary to be in his way, and his action, 
comported with his sentiments. But the more evident that his i 
nation was desired, the more pertinacious did Air. Hardin become. 

Thus matters dragged along, unhappily enough, until Septembi r i, 
1846. On that day an order was made by the governor removil 
Mr. Hardin, stating, as grounds, that he had failed to reside at Frank- 
fort, had neglected the duties of his office, and had abandoned it. 
The real grounds for the removal were not covered by any of the 
specifications. "The controversy between them," writes a mutual 
friend, "was an unfortunate affair growing mainly out of some hasty 
remarks. They were both special and honored friends of mine, .u\A 
I believe I know more about the cause of it than any m. in now living. 
There was nothing in it to detract from the merits of either." This 
excellent gentleman concludes with the injunction, "let it be forgot- 
ten;" but this affair, like other unpleasant facts of history, must be 
described, for, verily, it has its lessons. The writer of the above has 
furnished no other information, and the reader must determine the 
origin on other evidence. 

Whatever the motive or excuse of Governor Owsley for this act, 
its effect on Mr. Hardin and any aspiration he may have had for the 
United States Senate, or, for that matter, any post of honor, was not 
doubtful. To have quietly accepted the judgment of dismissal, with 
all its expressed and implied reasons, was little less than personal dis- 
grace, and, certainly, political ruin. If submitted to, it hopelessly 
crushed him, and this result the governor and his thoughtless advisers 
no doubt intended. But they evidently miscalculated either the 
power of the executive or that of the dismissed secretary, or else did 
not realize the nature of the issue that was made. Undoubtedly from 
this period (if he had ever been) Mr. Hardin ceased to be a senatorial 
quantity. He did not fail to realize that the highest ambition of his 
life had been stricken down at a blow. But at the same time there 
sprang up within him the spirit of the blind and goaded Sampson, 
when, at Gaza, he brought upon himself the ruin that destroyed his 
enemies. A reliable gentleman, a law student at Frankfort at the 
time, says that prior to this affair Mr. Hardin was regarded as sun 
election to the United States Senate and it was believed that p 
sons desirimr his defeat originated this attack on him. While the 



* Hon. Martin D. McHenry 



363 



BEN HARDIN. 



attack accomplished its purpose so far as Mr. Hardin was concerned, 
yet his friends (triumphing over his opponents) named Joseph R. 
Underwood for the senatorial succession, to the disappointment of 
those who conspired against him. 

The governor appointed George B. Kinkead, Esq., of Versailles, a 
man of high character, to fill the supposed vacancy. Mr. Hardin, 
however, proceeded by writ of mandamus to compel the auditor of 
State to pay the salary of the office to him. The circuit court decided 
adversely and he appealed to the Court of Appeals, where his right 
was upheld, though this did not occur until after the action of the Sen- 
ate. On the assembling of the Legislature the nomination of Mr. 
Kinkead was submitted to the Senate for confirmation. Mr. Hardin 
protested, and on that protest a committee was appointed to inquire 
and report whether the office of secretary of State was vacated by the 
alleged removal. That committee reported that there was no vacancy. 
On the question of adopting the report the whole subject was reviewed 
and debated in full session. The speeches of Francis Peyton, B. Mills, 
Crenshaw, and Mr. Hardin on the question have been preserved. It 
is not known whether a copy of the speech of Mr. Kinkead is extant. 

Before laying the speech of Mr. Hardin before the reader, it may 
be stated that during its delivery great excitement existed at the State 
capital. Where so shortly before he had been a fugitive, he stood 
forth a hero waving the wand of an enchanter. The survivors of those 
who heard that speech are unmeasured in its praise. "The pathetic 
effect," says the late Andrew J. Ballard, "was great indeed, especially 
of that part describing his returning home in the night because of his 
daughter's sickness, and knowing as he approached that she was dead, 
by the darkness of her room and the light in the parlor window below." 
Says the lamented John W. Stevenson : ' ' For power, interest, sarcasm, 
and originality, it was unequaled since the days of Edmund Burke. 
Never have I heard a speech whose popular effect was more over- 
whelming." 

It is no exaggeration to say that he carried the Senate by storm. 
On reaching a vote, thirty senators voted against confirming Kinkead 
to eight in favor — a civic victory, all things considered, without a par- 
allel. After this Mr. Hardin tendered his resignation, and Mr. Kin- 
kead was again nominated and immediately confirmed. 

The following is the speech of Mr. Hardin : 

' Mr. Chairman, it is a subject to me of deep regret that I am compelled 
to appear before you and this crowded and august assembly in defense of 



THE OWSLEY SPEECH. 369 

myself. Although I have been engaged in the practice of law upward 
forty years, and in that time I have pleaded, perhaps, more causes and 
defended more men than any lawyer in Kentucky, yet I was nevei under 
the painful necessity of defending myself before. My situation is peculiarly 
embarrassing; I have the governor, and the whole power of the State, so 
far as he can wield, direct, and control it, arrayed against me. I have to 
encounter and contend with the disadvantages of a man who has been 
abused, villified, and traduced, by the hired and mercenarj prints devoted 
to the governor and his party, for the last eighteen months. The suspii inns 
however unfounded, of everybody, are pointed toward and rest upon me. 1 
am bowed down with the weight of sixty-three years, and by a misfortune, 
laboring under nearly the total loss of my right arm, I stand here isolated 
and alone. I have no sons to aid and assist me, and by their presence and 
countenance to comfort and cheer me on. I had three sons — two are no 
more — they live in eternity. The third, you all know, is an able lawyer, an 
accomplished scholar, and an eloquent advocate. He is not here ; he left 
Kentucky, last September was a year, to join the army. He is there now. 
without pay, without rank, fighting the battles of his country, where, of all 
the places on the earth, I would most desire him to be. But, Mr. Chairman. 
I ask no assistance, no aid, foreign from the merits of my cause. Before an 
American people, truth is all-powerful; it is omnipotent, and will prevail; 
although, as I said a moment ago, I was embarrassed, notwithstanding that 
embarrassment I felicitate myself, and congratulate my family and friends. 
that the hour has come when I can disabuse myself, in public opinion, and 
vindicate my character and reputation. 

"That executive storm, like the distant cloud and thunder, that has been 
seen and heard by the public afar off, has at last approached ; it is now 
hovering over my head, and the world will shortly see whether it has any- 
thing in it but a dark and menacing appearance, fdled with wind alone, or 
is charged with, as far as I am concerned, all the elements of destruction. 
" Mr. Chairman, the questions which present themselves for the inquiry 
and investigation of the committee are, in part, questions of constitutional 
law, and in part of controverted and contested facts, according to the iss 
made up between the governor, in his message to the Senate, which a< com- 
panies the nomination of Mr. Kinkead, and myself, in the memorial I had 
the honor to present to the Senate through my worthy senator from the com 
of Nelson. The main and principal questions are, first, is there a vacan- y 
in the office of secretary of State; and if there be a vacancy, then is the 
nominee qualified to fill the office and perform the duties appertaining 

"I will dispose of the last question first, in a few words. I do not know 
Mr. Kinkead personally, but from the character given me by Mr. Charles 
A. Wickliffe and others, I have no hesitation in saying that he is eminently 
qualified ; and were I a senator, and there was no other question but his 

24 



37 o 



BEN HARDIN. 



qualification, I would not hesitate to advise and consent to his nomination. 
But the preliminary question to be investigated is, is there a vacancy 
in the office of secretary of State ? It is not my business to travel out of 
that question. All the other questions belong alone to the Senate. 

"The governor, on the day he took the oath of office at the capitol, 
made out a commission for me as secretary of State, until the end of the 
next session of the General Assembly, and enclosed the same to me at Bards- 
town, in a letter written by himself. I was engaged at the time I received 
the commission in a will case of deep interest to the parties concerned, which 
lasted about ten days. As soon as I made my speech to the jury, I left the 
ie unfinished, and came immediately to Frankfort ; I had an interview with 
the governor; I then told him I could not accept the office of secretary of 
State unless he agreed to two things ; one was, that I should leave Frankfort 
the next morning and finish the canvass as an elector for the State at large, 
and go to other States if necessary. The other was to continue my practice 
as a lawyer; for, I informed him, that I had to pay for others some thirty 
or forty thousand dollars, and that these security liabilities had fallen on me 
after I had parted with the principal part of my property to my children. 
To these two conditions he readily assented, and remarked: 'By all means 
finish the canvass as an elector, and go wherever you please.' To the second 
condition, he observed : ' I do not expect you to abandon the practice of 
the law.' I then took the oath of office. 

"At the special instance and request of the governor, urged with great 
earnestness, I appointed Abram S. Mitchell my assistant secretary. He 
said Mr. Mitchell was well qualified, was poor, and, as the editor of a news- 
paper at Danville, called the Tribune, had advocated his election, and he 
wanted me to give him the appointment, because he felt under some obliga- 
tion to him. I had before that time, and in reply to a letter of Mr. Boyle, 
who married the granddaughter of the governor, promised the appointment 
to Mr. Mitchell. The letter of Mr. Boyle said his appointment was desired 
by the governor. I did not know Mr. Mitchell. Mr. Ambrose Barbour, 
of Danville, my nephew, wanted the appointment; I knew he was well 
qualified ; my family and myself felt anxious he should have it; but as the 
governor desired Mr. Mitchell to get it, I promised it to Mr. Mitchell by 
letter addressed to him. 

"When I came to Frankfort in September, 1844, to take the oath of 
office, I found young Mr. Coleman in the office, acting as clerk. Mr. 
Mitchell was not in Frankfort. Mr. Coleman handed me two letters, one 
from Mr. Harlan, whose clerk in the office of secretary of State he had 
been, and the other from Robert Wickliffe. The letters recommended him 
in the highest terms, and spoke of his understanding the details of the busi- 
ness of the office. I was inclined to continue him as clerk. The night 
before I left Frankfort the governor came to my room at the Weisiger 



THE OWSLEY SPEECH. J*j 

House, and again pressed me to appoint Mr. Mitchell, which I did, in the 
form of a letter, and gave it to the governor, which appointment was in 
these words, viz : 

"'A. S. Mitchell: 

" ' Sir : I, by these presents, appoint you clerk of the secretary of St. 
and direct you to enter your appointment on the executive journal. I also 
empower you, as clerk, to sign my name to all official papers which it may 
become necessary for me to sign, and further direct you to enter this aul 
ity, by a separate order, in the executive journal. 

" ' Signed BEN HARDIN, Secretary of State. 

" Frankfort, September 16, 1844.' 

"I took the oaths of office on the 16th of September, 1844, and left 
Frankfort on the next morning. Between that time and the presidential 
election, I visited Indiana three times, and spoke to the people once at 
Mockport, once at Rome, and once at Oil Creek. I traversed Meade, 
Breckinridge, and Grayson counties, and the Congressional district now 
represented by Dr. Young. That district, at the August election, had gone 
for Butler by about six hundred of a majority. I left it about two months 
before the August election. Governor Owsley had fallen below the Whig 
vote, and I thought about four hundred votes; the balance I thought we 
could make up by great exertions. The Whigs, in some of the counties, 
had swapped Governor Owsley off for Butler, to get votes for themselves or 
friends. At the Presidential election the Whigs carried the district by about 
five hundred of a majority. It has remained a Whig district ever since. 
Clay and Crittenden are political stock that the Whigs never swap off. 
'The distinguished Whigs,' at the August election, in 1844, were in market 
at every place of voting. Bad stock is always ready for trade, barter, or 
swap. 

' As soon as the presidential election was over, I went to Taylorsville 
court and staid there three or four days, and came to Frankfort, where I 
found Mr. Tilford acting as assistant secretary for Mr. Mitchell, who, I 
understood, had gone to West Tennessee to visit his family. I remained at 
Frankfort a short time after the Electoral College met. I then went to 
Washington county to see my daughter, Mrs. Palmer, who I understood was 
sick. I staid something like a week; she got better, and I returned to 
Frankfort about one week before Christmas, and then, for the first time, I 
saw Mr. Mitchell to know him. 

"In January, the governor nominated me as secretary of State, for the 
advice and consent of the Senate, which nomination was approved of, and 
advised and consented to by a unanimous vote of the Senate. On the 16th 
of January, 1845, tne governor issued a commission and delivered it t<> me, 
which commission, gentlemen, reads in these words : 

" ' In the name and by the authority of the Commonwealth of Kentucky, 
William Owsley, Governor of said Commonwealth : To all persons who shall 



572 BEN HARDIN. 

see these presents, greeting : Know ye, that reposing especial trust and con- 
fidence in the integrity, intelligence, and ability of Benjamin Hardin, I do, 
by and with the advice and consent of the Senate, appoint him secretary of 
State of the Commonwealth of Kentucky, hereby investing him with full 
power and authority to execute and fulfill the duties of the said office accord- 
to law ; and to have and to hold the same with all the rights and emolu- 
ments thereunto legally appertaining, during good behavior and until the end 
?/ my administration. In testimony whereof, I have caused these letters to 
be made patent, and the seal of the Commonwealth to be hereunto affixed. 
; liven under my hand at Frankfort, on the 16th day of January, 1845, and 
in the 53d year of the Commonwealth. 

" 'By the Governor. 

<" BEN HARDIN, Secretary of State. WILLIAM OWSLEY. 

"By A. S. Mitchell.' 

[seal.] 

" I took the oaths of office. Mr. Mitchell's appointment as my assistant 
secretary was continued until the 1st of September, 1846, and after Mr. Kin- 
kead was appointed signed my name as secretary of State in the presence of 
Mr. Kinkead and the governor, to sixty patents. 

"The office of secretary of State was kept on the Capitol square ; the busi- 
ness of that office was scarcely ever behind one hour, but was well done, and 
faithfully done, by me and my assistant up to the 1st of September, 1846. 
There is a remarkable fact to which I invite your attention, gentlemen, that 
the executive journal, which I now exhibit to you, shows there was no busi- 
ness in the office of secretary of State done, or to be done, from the 29th of 
August, 1846, until the 1st of September, 1846, and then the first order is 
the entry of my attempted removal, the appointment of Mr. Kinkead as sec- 
retary of State, and his appointment and continuance of Mr. Mitchell as 
assistant secretary. All those orders make but one order in the executive 
journal, and read in these words : 

" ' September i, 1846. 

" 'Whereas, Benjamin Hardin, by his failure, willful neglect, and refusal 
to reside at the seat of Government and perform the duties of secretary, has 
abandoned said office ; and said office, in the judgment of the governor, has 
become vacant for the causes aforesaid, it is, therefore, declared by the gov- 
ernor, and ordered to be entered upon the executive journal, that the office 
of secretarv has become, and is, vacant. Whereupon, to fill said vacancy, 
the governor this day commissioned Geo. B. Kinkead, Esq., to be secretary 
till the end of the next General Assembly of Kentucky, and Geo B. Kin- 
kead, having qualified to his commission, entered upon the discharge of his 
duties. 

" ' Geo. B. Kinkead. secretary, by and with the advice and consent of the 

ivernor, appointed and continued A. S. Mitchell in the discharge of the 
duties of assistant secretary, which office he has heretofore been filling.' 

"The dry and perhaps uninteresting details of facts which I have this 
moment given, Mr. Chairman, may be deemed by some unnecessary. I 
consider them important in the investigation of some of the governor's 






THE OWSLEY SPEECH. 



373 



charges against me. But my feelings are so alive to this contest that I may 
give them, in all probability, an artificial and factitious important 

"I will now, Mr. Chairman, leave the further details of the facts to 
another part of this speech, and state the exact points in dispute betv. 
the governor and myself. 

"The question of the power of the governor to remove m.- necessarily 
divides itself into two main and leading branches of inquiry. First: V.1 
the charges alleged by him true in fact? and if all or any of them are true, 
do such as are true justify and authorize him to remove me ? Secondlj : 1 1 is 
the governor the power of removal for any cause whatever? 

"Before I commence an investigation of the questions in the order pro- 
posed, it is necessary to examine the nature and form of our State government ; 
and as cases and analogies are attempted to be deduced from the British 
ernment and that of the United States, an inquiry into the form of those two 
governments becomes also necessary, to show there is no likeness, no anal- 
ogy between the governments of Great Britain and the United States and that 
of the State of Kentucky, so far as the power of the governor to remove the 
secretary of State is concerned and involved. 

" A monarchy, in its original elements, is but the government of one man ; 
and it matters not by what name he is called, whether king, emperor, or grand 
Turk; and all the rights the people have under such a government are but 
concessions made by him. He is the source and fountain of all power. What- 
ever has not been granted him by the people is reserved to him as so much 
power not parted with. Hence, in Great Britain, the repeated contests 
between the king and the people, or, in other words, between the rights 
granted and the rights reserved. Sometimes His Royal Majesty is pressing 
his prerogatives — which, in other words, are his rights reserved — upon the 
rights granted to the people; and when he does, he perils a great deal, as the 
melancholy fate of Charles I. and the expulsion of James II. can well tes- 
tify. All men love power, from Bonaparte even down to Governor Owsley. 
In Great Britain all appointments are made by the king, and the office of the 
appointee is during the good pleasure of His Royal Majesty. Governor 
Owsley's doctrine, if carried out, amounts to the same thing — the appointee 
to hold during his good pleasure, to-wit, the pleasure of Mr. Mitchell. 

" But to the power of the king of Great Britain, by an act of the thir- 
teenth Parliament of William III., to which the king gave his assent, there 
is one limitation and restriction upon the power of removal— the ju( 
are to hold their offices so long as they behave themselves well. Governor 
Owsley's claim, that is, his all grasping pretension of de< bring a vacancy, 
admits, in its consequences, of no restriction; like the mighty avalanche, it 
sweeps all before it. 

" The Government of the United States is mainly national in its character 
and practical operations upon the people. In the Senate it is federative in 



1 *T 4 

:>/4 



BEN HARDIN. 



making laws and in the trial of impeachments, and, also, in the exercise of 
a part of the appointing power. There is, however, a marked and palpable 
distinction between the government of the United States and the State of 
Kentucky. One is a government composed solely of delegated powers. The 
other has all the powers and attributes of sovereignty that any people on 
earth can have, except those powers delegated to the government of the 
United States or in the Constitution of the United States inhibited to the 
States. 

"The State of Kentucky, in the formation of its government, has con- 
ferred certain defined powers on its officers and functionaries, and the rest 
of the powers of sovereignty are reserved to the people. No officers in this 
government — no, not even Governor Owsley, 'the distinguished Whig/ 
however arrogant in office and vain in his station — can exercise any powers 
of .government not granted to him. He has no royal prerogative powers. 
He is the creature of the Constitution and the law, just as much as a con- 
stable or surveyor of a public road. If such men as hang around him and 
bask in the sunshine of his patronage and favor should, by servility and flat- 
tery, cause him to forget his station, he must be taught to know it. There is 
one political maxim in our government which seems to be obsolete and for- 
gotten by its officers, that the offices were made for the people, and not for 
the officers : and no man has ever filled an office in this State that requires 
more immediately to be made to learn that lesson than Governor Owsley. 

" To sum up, in a few words, the distinctive principles of the government 
of Great Britain, the United States, and that of Kentucky, they are these : 
The reserved powers in Great Britain belong to the king. The United 
States have no reserved powers. The reserved powers in Kentucky belong 
alone to the people. 

" Mr. Chairman, having, in a few words, called the attention of the hon- 
orable committee to some of the fundamental principles of our government, 
I will now invite their further attention to that part of the Constitution of 
Kentucky, relied upon by the governor, as conferring upon him the power 
to remove me from the office of secretary of State. The third article, from 
the eighth section to the fifteenth, inclusive, reads in these words : 

"• ' Section 8. He shall be commander-in-chief of the army and navy of 
this Commonwealth, and the militia thereof, except when they shall be 
called into the service of the United States ; but he shall not command per- 
sonally in the field, unless he shall be advised to do so by a resolution of 
the General Assemblv. 

' Sic. o. He shall nominate, and by and with the advice and consent 
of the Senate, appoint all officers, whose offices are established by this Con- 
stitution, or shall be established by law, and whose appointments are not 
herein otherwise provided for; Provided, That no person shall be so 
appointed to an office within any county, who shall not have been a citizen 
and an inhabitant therein one year next before his appointment, if the 
county shall have been so long erected, but, if it shall not have been so 



THE OWSLEY SPEECH. 



375 



long erected, then within the limits of the county or counties from which it 
shall have been taken; Provided, also, That the county courts shall he- 
authorized by law to appoint inspectors, collectors, and their deputii 8, sur- 
veyors of the highways, constables, jailors, and such other inferior offi< 
whose jurisdiction may be confined within the limits of a county. 

" 'Sec. io. The governor shall have power to fill up vacancies that may 
happen during the recess of the Senate, by granting commissions, which 
shall expire at the end of their next session. 

" 'Sec. ii. He shall have power to remit fines and forfeitures, grant 
reprieves and pardons, except in cases of impeachment. In case of I 
he shall have power to grant reprieves until the end of the next session of 
the General Assembly, in which the power of pardoning shall he vested. 

" 'Sec. 12. He may require information, in writing, from the officers in 
the executive department, upon any subject relating to the duties of their 
respective offices. 

" 'Sec. 13. He shall, from time to time, give to the General Assembly 
information of the state of the Commonwealth, and recommend to their 
consideration such measures as he shall deem expedient. 

" 'Sec. 14. He may, on extraordinary occasions, convene the General 
Assembly, at the seat of government, or at a different place, if that should 
have become, since their last adjournment, dangerous, from an enemj . 
from contagious disorders, and, in case of disagreement between the two 
houses with respect to the time of adjournment, adjourn them to such time 
as he shall think proper, not exceeding four months. 

" 'Sec. 15. He shall take care that the laws be faithfully executed.' 

"If the governor has any power to remove the secretary of State, it 
must be found in those parts of the Constitution which I have read. There 
is no direct power given him. He claims it by implication, as an incident 
to some granted power. This power, by implication, in the executive head 
of the government, is a most dangerous one. The exercise of it is to be 
watched by the people with great care, and guarded against with the most 
vigilant and suspicious jealousy. No latitude is to be given the executive 
in the selection of his means to carry his expressly delegated powers into 
effect, beyond those that are plain, direct, and absolutely necessary, and such 
as are usual and customary. Because, if the people allow him to select 
means to carry his express powers into effect, other than those absolutely 
necessary, then there is no limit — no line of demarkation. For then lie can 
press and push his constrained construction of incidental powers to such an 
extent as to swallow up every other department in the government, and have 
the legislative, executive, and judicial departments, and all the oft 
belonging to them, prostrate at his feet. His power will, like the rod of 
Aaron, swallow up the balance of the government ; and then he can 
as Bonaparte said to his Senate, when they began to talk of the government, 
'hush your nonsense; I am the government! ' 

"Mr. Chairman, after I have progressed thus far in the argument, and 
laid down and endeavored to establish certain political maxims and prim 1- 
ples, which I consider applicable to the questions now under consideration, 



376 



BEN HARDIN. 



I am brought to the first main branch of the two propositions I intend to 

discuss. 

••First: Are the governor's charges of official delinquency against me 
true, in fact? If not all true, how many are true, and what are the official 
responsibilities growing out of those that are true ? 

••The first specification which I shall notice, in the charges of the gov- 
ernor, reads in these words: 'Moreover, when it is called to mind that, 
while in Frankfort he, for weeks in succession, kept himself at a distance, 
and held no intercourse with the governor.' 

"This charge is denied by me. What is the proof? Last August was 
one year ago, on the third day of the election, we parted friendly, after I 
gave him an opinion in the case of Dr. Baker. The governor had, before 
that time, requested me to examine the record, and investigate the question, 
both of law and of fact, involved in the case, which I had done with great 
care. When I say we parted friendly, it was so on my part, and seemed 
so on his. 

" I went to the Marion Chancery Court, remained there about five days. 
I then passed through Bardstown and went to Brandenburg, to the Meade 
Chancery Court. At the termination of that court, which continued about 
one week, I returned to Bardstown, and attended the Nelson Circuit Court. 
From there, as soon as the court was over, I returned to Frankfort. The 
governor refused to speak to me, and when at first I attempted to approach, 
he would wrap himself up in his cloak, proudly stalk off with a gloomy, 
repulsive grandeur that has never been equaled, except by Ajax, when Ulys- 
ses attempted to speak to him in the world below. 

" That the governor refused to speak to me was proved by Jeptha Dud- 
ley. Mr. Mitchell attempts to account for that by swearing that respectable 
gentlemen. from Marion informed the governor that I spoke in harsh terms 
of him in that place, when speaking of the mob. When I asked Mr. Mitch- 
ell, ' do you know the men who gave the governor the information ? ' his 
answer was, he did not. The question was then put to him, ' Do you know 
that any person gave the governor such information ? ' he replied, he did 
not ; but the governor told him so. 

" It is a matter of no importance, as to the truth or falsehood of the charge 
against me in the specification of the governor, whether the governor received 
such information or not from Lebanon. It goes to prove incontestibly that 
he would not speak to me, and fortifies what Mr. Dudley said, and also to 
prove that Mr. Mitchell is bold, adventurous, and unscrupulous in what he 
states on oath when he swears to the respectability of men he does not know, 
and that they said so and so when he did not hear it. 

" We remained in the situation of non-intercourse so far as not to speak 
to each other, although we did our official business in the same office, until 
t'le 3d of January, 1846, when all our difficulties were amicably settled. He 



THE OWSLEY SPEECH. 

offered me his hand, and I gave him mine. We made friends, talki 
usual, held private and official intercourse with each other, without 
jar or cold look on my part, until we parted on the 7th of August, 18 \6. We 
sat in the same room together and within three feet of ea< h other for ten d. 
before we parted in August last. 

" Mr. Mitchell stated that the governor entertained the opinion thai 
our reconciliation last January my feelings were not cordial, not that I had 
said or done anything objectionable. So, 1 suppose, I am to 1"' punished 
for my feelings and not my actions. The Caesars of Rome, who were in 
their day the scourges and tyrants of the world, in their endless persecutions 
for violated majesty never considered their sacred majesty violated by mere 
thoughts or feelings unexpressed. It is alone for Governor Owsley, in the 
plenitude of his power and imaginary greatness, to punish feelings and 
thoughts. 

"As Mr. Mitchell has cut an important figure in the present adminis- 
tration — and I consider him the prime mover in this malicious and unholy 
prosecution against me — a short description of this young gentleman may lie- 
useful, and perhaps necessary. 

" A few years ago, as I am informed, he arrived at Danville, a very young 
man, from near Randolph, West Tennessee, and entered as a scholar in 
Centre College. How long he remained there, I do not know ; and whether 
he completed his education or not, I have not learned. What his vocation 
was before he came there, I only know from rumor; it is a matter of no 
importance. When he left college he either established or became concerned 
in the editorial department of the Tribune, a paper in no wise celebrated for 
the ability of the editor, but somewhat famous for the slander and defamation 
with which it was filled. That paper has advocated the governor's nomina- 
tion in the Whig convention, and threatened a secession of a part of the 
Whigs from the main body, if the convention did not nominate Governor 
Owsley as the Whig candidate for governor. The Whigs believe. 1 the paper 
spoke the sentiments of Governor Owsley, and permitted themselves to be 
bullied into his nomination. 

" What was the political result of that nomination ? The answer is plain 
and obvious. Bv his unpopularity he ran about five thousand behind 
Whig strength in Kentucky, which made such an impression upon the bal- 
ance of the United States that, in the opinion of the best informed men in 
Kentucky, it lost Mr. Clay's election and ruined the Whig cause, perhaps, 
forever. ' During the canvass the leading Whigs saw the danger thi 
rounded and environed them round about, growing out of the fan that ( ,0' 
ernor Owsley was running below the Whig strength, and increa 
efforts, made such exertions as were never made before, and save 
tion. As to himself, although he delights in having Mr. Mitchell call h 
'the distinguished Whig,' he was as helpless as a child. If the rum of the 



378 



BEN HARDIN. 



Whigs in Kentucky was not completed by his running for governor, I think 
I hazard nothing in saying he will put a final finish to the party before he 
goes out of office, if the Whigs identify themselves with his administration. 

" I have remarked to the committee before, how and in what manner Mr. 
Mitchell became my assistant secretary. The governor took him into his 
family, gave him his confidence, rendered me as much a cipher in the office 
of secretary of State as possible. He has been to me, from the time of my 
appointment until my attempted removal, haughty, supercilious, and arrogant; 
his manners extremely offensive, and to the governor servile as a spaniel. He 
has been a spy upon me, treasuring up every word I uttered, and then whisper- 
ing them to the governor in a mutilated, distorted, and garbled state, thereby 
making me mean one thing when I intended another, for the sole purpose of 
making mischief, in the hope that I would leave the office and he would 
obtain it ; and if I had resigned quietly he would have got the office if the 
governor could have got his nomination confirmed. I was frequently urged 
by my friends to dismiss him on account of his insolence and rudeness to me. 
I declined to do it ; first, because he performed his duties well ; and sec- 
ondly, I knew it would displease the governor, and I did not wish to give 
him any offense. His fondness and affection for Mr. Mitchell have been so 
extravagant as to become an infatuation, a morbid disease of the passions. 
He believes him a prodigy on earth, only given to the world by the Almighty 
to show to what perfection he can make a man. Mr. Mitchell has, in truth 
and fact, controlled the government, so far as the powers of the Executive 
would go, from the commencement of Governor Owsley's administration 
even unto this day. The worst part of the story is, he does not delight in 
doing good, but evil. He is eternally studying how to get offices and employ- 
ments for himself and a few families, and to do mischief to the residue of the 
people of the State. He does not study the honor of Kentucky, but how to 
degrade and dishonor her. Not contented with the humiliation of a lad from 
West Tennessee governing her, but how to make the fact notorious that her 
disgraced and humbled condition may be seen by and known to the world. 
Thank God, however, such men as Mitchell and Governor Owsley can not 
put one dark spot upon the glory of Kentucky. 

"The history of the world furnishes no parallel to Governor Owsley's 
strange and unaccountable infatuation for Mr. Mitchell but that of James I. 
king of Great Britain, first for Robert Carre, in 1609, and afterward for 
George Villiers, in 161 5. In 1609, at a match at tilting, Carre, then twenty 
3 old, of handsome person, fine address, and polished manners, was 
selected to present to the king, as part of the ceremony, his buckler and 
device. His horse threw him and broke his leg. The king had him carried 
t< 1 his palace and attended to by his physician. When he recovered, he made 
him the depository of his secrets; gave him his whole confidence; created 
him Viscount Rochester, and soon after Earl of Somerset, with estates and 



THE OWSLEY SPEECH. 



379 



salaries amply sufficient to support his titles and dignity. I [e controlled and 
governed the empire of Great Britain when only twenty years ol age, with- 
out talents or information, although a man of the greatest talents, su< h 
Cecil, Earl of Salisbury, was prime minister, with an able cabinet to assist 
him. 

"In the year 1615 the ministry met with a young man, twenty-one y< 
old, by the name of George Villiers, in the bloom of youth, finely formed, 
and exceedingly handsome. They introduced him to the king, as the only 
way of counteracting the influence of Somerset^ The king became more infat- 
uated with Villiers than he had ever been with Carre ; promoted him from 
one office to another, and at last made him Lord High Admiral ol Great 
Britain and Duke of Buckingham. His new minion imperiously controlled 
the ministry, the king, and Great Britain until the death of James; and then 
had the same uncontrollable influence over Charles I., son of James ; pushed 
him on into such desperate and reckless measures as terminated, first, in the 
death of Buckingham, and then in the dethronement and death of the king. 

" The analogies do not hold good in this — that Carre and Villiers w 
handsome men; but it must be recollected that James and Charles were 
kings; Governor Owsley falls as far below those splendid monarchs as 
Mitchell does Somerset and Buckingham in personal beauty and accomplish- 
ments. But all three are alike in this: Somerset and Buckingham won their 
way to favor, in part, by flattery and servility. So does Mitchell. They did 
nothing else but deeds of mischief. So did Mitchell. He has fairly won 
the title of Duke of Buckingham, and by no other name ought he to be sty lei 1. 
called, and known. 

" Mr. Chairman, His Grace, the 'duke,' said in his evidence, that after the 
reconciliation between the governor and myself, on the 3d of January, 1846, 
the governor thought my feelings were not cordial toward him. My feel- 
ings at first were as cordial and kind as they ever were, and at one time 
there was not a man on earth for whom I entertained kinder or better feel- 
ings. But after the reconciliation he and his family, in a cold-blooded and 
deliberate manner, insulted me and treated me with indignity, and then had 
the unfeeling impudence to boast of it. Two or three days after the recon- 
ciliation His Grace informed me that the governor requested him to say to 
me that I must excuse him for not inviting me to the palace that winter, 
either to dinner or the levees; that his daughter, Mrs. Goodloe, and his wile 
objected to my coming on account of my calling Mr. Goodloe, in a card 1 
had published a few days before, a liar and scoundrel. I thought stran 
of the message, that the governor should permit the ladies of his family t 
interfere and dictate to him who should or should not be invited to official 
dinners and parties of official ceremony. I replied to the communica 
in these words: There can be no difficulty on that score: I have determined 
that on account of the recent death of my daughter, to attend no dinners or 



3 8o 



BEN HARDIN. 



parties this winter, and I will return that answer to his invitation. No invi- 
tation came. I then understood the plan of operations by the governor, his 
family, and His Grace — that it was an arranged and concerted plan to insult 
me. 1 said not one word about it, and cared nothing. 

"In a week or two I could occasionally hear that the governor was 
remarking that I was unworthy to be invited to his house, and that the 
females of his family were, in the fashionable circles of Frankfort, making 
the same remarks. I then became thoroughly convinced that the whole was 
a wicked and malicious contrivance to give them a pretext for slandering me. 
I know the whole family, including His Grace, delighted in doing me those 
kind offices. I knew what I heard was true, as to what the governor said. 
I got it from gentlemen of undoubted veracity ; and as to what the females 
of the palace said, I obtained it from a source entitled to the fullest credit. 

"This winter two years ago, I taught, for the pleasure of it and nothing 
else, a class of young ladies, in my office, for about three months, from 
seven o'clock to half after nine, unless I was engaged in the secretary's 
office, ancient history, together with ancient and modern geography, and 
the poetical works of Homer, translated by Pope, and the works of Virgil, 
translated by Pitt, and united with these poetical works the Pantheon, also 
the geography connected with the Bible and Testament, explained by the 
maps of modern travelers, such as Stephens, etc. The class was composed 
of young ladies of the best families in this town. They are now the pride 
and ornament of the polite and fashionable parties of this place. Nay, I 
can say more for them, with truth, that they are the smartest and most 
intelligent set of girls I ever saw in one class. Their minds are sharp, 
keen, and bright as the finest-polished sword that was ever made at Toledo 
or Damascus. I can take them, this day, into the Representatives' Cham- 
ber, and examine them on geography, ancient and modern, against the 
governor, and they can beat him nine times out of ten. They can tell that 
the river Nile is in Africa, and the Cape of Good Hope is south of the 
Equator. 

" But I am yet to learn, I repeat it again, that a man is to be punished 
for his thoughts and feelings. In the reign of the Jacobins in France, with 
Robespierre at their head, they never carried their bloody and extravagant 
doctrine of crimes into men's secret thoughts and feelings. I will close my 
remarks on the first specification that I have referred to, by pronouncing it 
untrue ; it is pitiful, frivolous, trifling, and malignant. 

" Another specification in the charges exhibited against me by the gov- 
ernor reads in these words : ' And, when at the seat of government, he has 
willfully failed and neglected to bestow the attention and perform the duties 
which were incumbent on him, as secretary, to perform.' 

"I deny that charge, and call on the governor for his proof. He has 
offered none — no, not one word — in support of it. If it were the fact, 



THE OWSLEY SPEECH. I 

Mitchell would know it; and if he knew it, he would be ready and prompt 

to state it in the strongest terms possible. I call upon you, Mr. I nan, 

and this honorable committee, to bear in mind what proof has beeu oi 
by me to disprove the charge. Mr. Macurdy, one of the clerks in the ! 
ister's office, swears that, when in Frankfort, I attended to my duties in the 
secretary's office with great punctuality. So does Colonel Davidson, the 
treasurer, with whom I boarded. Mr. Cox, a member last session, from the 
county of Fleming, states he frequently called at the secretary's offii <•. and 
always found me in place, attending to the duties of the office, ami a< i om- 
modating the members of the Legislature by waiting on them and hunting 
any laws for them they might want; and if the laws the members wished to 
see were not in the secretary's office, I went to my private law office and 
got such laws as they wanted ; and, in fact, threw my private law libran • 
for the use of the Legislature; which is, Mr. Chairman, the most extensive, 
I expect, of any law library in Kentucky, besides some three hundred vol- 
umes on political subjects. The same facts were proved by Mr. Parker C. 
Hardin, who is a senator, and has been in the Senate for six successive 
vears, and who had every opportunity of knowing. There never was a 
charge exhibited against any man so unfounded. I do verily believe, when 
in Frankfort, if the Legislature were not in session, I did not lose two hours 
a day, from the rising to the setting of the sun, that I was not there attend- 
ing to the duties of the office ; and during the sessions of the Legislature I 
was there from morning to night, and sometimes after night — Sundays 
included— unless I went to deliver some message to one or the other House 
of the General Assembly. All the officers on the capitol square attended 
well to their official duties; however, none excelled me but Elisha Macurdy. 
and he is never out, day or night, unless when he goes to eat. 

"The next two specifications made by the governor against me read in 
these words: ' He has willfully failed and neglected to reside at Frankfort, 
the seat of government.' ' He has at different times willfully absented him- 
self from the seat of government for weeks and months in succession, and 
part of the time out of the State, thereby putting it out of his power to per- 
form any of the duties of secretary.' 

" I shall, Mr. Chairman, consider both of these charges together. I can 
not well respond to them separately; for if I do, I will have to repeat, wh 
answering the second specification, a great many things which I shall be < om- 
pelled to state when responding to the first. 

"Mr. Chairman, a full answer to those two specifications would tak< 
much longer time than I would desire. But the main and principal 
lions of the governor and his little party around him are based on them. 
defending myself before this honorable committee, the Senate, thi 
at large, and posterity, if it shall ever hear of or take interest to read ol 
ernor Owsley's administration (but of that there is some doubt), my duty 



382 BEN HARDIN. 

imposes upon me the necessity of begging the kind indulgence of the com- 
mittee to bear with me in the somewhat minute details of facts I am about to 
give. They may be deemed by you not essential. I deem them remotely 
material, at least. 

"The 1st of April, 1804, when I was twenty years old, I commenced the 
study of the law with Martin D. Hardin, in Richmond, Madison county. 
At the April circuit court I became acquainted with William T. Barry, Sam- 
uel Woodson, George M. Bibb, John Pope, and William Owsley. I was 
humble and obscure. Those gentlemen paid me some attention. I was 
gratified and much pleased at their notice of me. Those little acts of kind- 
ness won my youthful heart, wdien all alive to first impressions and sensibili- 
ties. My friendship continued unbroken and uninterrupted with Barry, Pope, 
and Woodson until their deaths. I am proud to say that it continues with 
George M. Bibb up to this day. I became more intimately acquainted with 
William Owsley than any of the other gentlemen. His manners were soft 
and apparently kind. He was then about four and twenty years old. I saw 
he had no education, and labored under great disadvantages for want of it. 
If I recollect right, he told me he had ridden deputy sheriff in the county of 
Garrard, and not long after he quit the office of deputy sheriff he had com- 
menced the practice of the law. I left Richmond the 1st of April, 1805, and 
went to Bardstown, and there read law with Felix Grundy until I obtained 
license to practice law in June, 1806. I was elected to the Legislature by 
the people of Nelson county in 1810, and likewise in 181 1. In the session 
of 181 1 I met William Owsley. We had not seen each other from the spring 
of 1805. Adversity frowned upon us when we parted; fortune smiled upon 
us when we met again. Our old friendship was renewed with heartfelt greet- 
ings. I declare I had great pleasure in meeting him. I had a real affection 
for him. 

"About the year 1813 he was made a judge of the Court of Appeals. I 
attended that court and pleaded law before him. I was elected to Congress in 
1814, 1818, and 1820, and then declined a re-election. In 1824 I was in 
the Legislature, and I think fortunately for Governor Owsley I was. The 
New Court party bore down upon the Court of Appeals for daring in a fear- 
less manner to do their duty, their whole duty, and nothing but their duty. 
I formed one of that small but determined phalanx that defended Judges 
Boyle, Owsley, and Mills. Then my voice was heard in the Hall of Repre- 
sentatives in bold, determined, and manly tones, defending the old judges, 
as they were (ailed, the constitution, and, what was consoling to my heart, 
my old friend William Owsley. Political war raged for two years. I was in 
the battle from the commencement to the end. I devoted my time to the 

se of the old judges. I spent my money and shed my blood at the capitol 
dd >r in its defense. The first year the New Court party came within one or 
two votes of obtaining two-thirds of each House to remove the judges by 



THE OWSLEY SPEECH. 

address. By the next year the storm of popular frenzy has spent its for< e ind 

passed off. Reason had resumed her empire over man. The old iudc 
were safe and the violated constitution restored to its original heall 
vigor; nay, became more robust by the fiery ordeal through which it I 
passed. Judge Owsley ought to be the last to ever forget the n 
fair constitutional trial. The two-thirds principle contained in our constitu- 
tion saved him until the angry passions of the people subsided, and then all 
was right. 

"Suppose the then governor of Kentucky, General Desha, had pursued 
the same arbitrary course with him, Boyle, and Mills that he is now attempt- 
ing against me; that is, to remove me, or attempt to do it, without noti< e or 
trial, what would have been the result? He would have been removed and 
degraded in the eyes of the world — just where his malignity wants to place 
me — and the constitution would have been broken and violated. But Gov- 
ernor Desha and the New Court party gave the old judges a fair constitu- 
tional trial. Truth and justice triumphed, and all ended well. 

"Mr. Chairman, at the time of the contest of the old ami new court, if 
a prophet, such as Elijah and Daniel of old, or one like Samuel, had risen 
from the dead and told me that, twenty-two years after I had pleaded tor the 
old judges in this hall, and was cheered by the shouts of a crowded audieni 
I should be compelled, in the same place, in my old age, uninfluential. aloi 
and unprotected, to defend myself against the attacks of the same Judge 
Owsley, I would not have believed them. Nothing less than an angel from 
Heaven could have obtained credit with me for such a prediction. The 
crowd, by their shoutings, then proclaimed I was on the right side ; they 
give me the same encouragement now. They are indignant at the unhal- 
lowed persecution carried on by the man who owes me more for his present 
elevation than any man in Kentucky, and is using his position and power to 
crush me. What malignity — how barbed with ingratitude. 

" After the storm raised by the New Court party had ceased, and a i lear 
political sky was over our heads again, Judge Owsley left the bench of the 
Court of Appeals and resumed his practice as a lawyer. We met occasion- 
ally at the bar, and about the year 183 1 we met again in the Senate. I think 
we served two years together. I then resigned my seat in the Senate and 
went to Congress, where I remained until 1837. I left Congress when I 
had no opposition; my private pecuniary affairs required it— nay, demanded 
it most imperiously. I resumed my practice at the bar with ellorts pro- 
portioned to my moneyed embarassments, which were, on account ol sei unty 
liabilities, very great. 

"Four years ago this winter I came to Frankfort. I was sent by the 
people of Bardstown to prevent, if practicable, the division of Nelson 
county. Judge Owsley and his son-in-law, Mr. Goodloe. were then \ 
busy electioneering; and, as some said, writing preambles and resolutions. 



384 BEN HARDIN. 

and sending them to distant counties, recommending the judge as a candi- 
date for governor ; and rumor further reported that they not unfrequently 
returned proclaiming that they had spoken the voice of the county to which 
they were sent, when nobody in the county, except some three or four par- 
tisans of the governor, ever knew they were there. 

"One day, within a day or two after I arrived at Frankfort, Judge Ows- 
ley approached me, as his old friend, to go in for him as a candidate for 
governor, and assist him to obtain the nomination of the Whig convention, 
which was expected to meet the fall after. The first application was in the 
Mansion House. I then told him I could not go in for him unless he came 
under certain pledges to me. We were then interrupted, and said no more 
at that time. A day or two afterward he asked me to go to his law office. 
I went. I then told him I would go for him on one condition ; and unless 
he would agree to that, I would not. The condition was, to know no man's 
politics when he was an applicant for office ; that the politics of the General 
Government had been introduced into the administration of the State gov- 
ernments unnecessarily, and by that means the State lost the talents and ser- 
vices of one party or the other. I pointed out how the different governors 
had administered the government, beginning with Governor Desha, down 
to Governor Letcher ; and that if he would set the example of administer- 
ing the government without reference to party, he would do his country 
great service ; it would be followed by other governors who would succeed 
him, and by that means party strife and animosity would cease in Kentucky. 
Judge Owsley then pledged himself to me in the most solemn manner, if 
elected governor, to know no man's politics in the distribution of offices. I 
then told him I would ride over Kentucky and make speeches for him ; 
and that I must make that pledge for him in all my speeches. He told me to 
do so. The same day I went and informed Parker C. Hardin, my nephew, 
what had passed between Judge Owsley and myself, and said to him these 
words : 'Let us all go in for him.' I had reference to my family and con- 
nections ; for there is no man in Kentucky that has, by blood and affinity, 
so large a connection — a large number of them are men of talents and fine 
public speakers. 

" After this conversation with Judge Owsley I returned to Bardstown; saw 
my son, Rowan Hardin, who was at that time an editor at that place. His 
paper immediately commenced advocating the nomination of Judge Owsley 
as the most available candidate for governor to be run by the Whig party, at 
the same time speaking in high terms of his fitness and qualifications for the 
office. That paper continued to advocate his nomination until the convention 
met at Louisville. Every exertion was made by me that I could make to throw 
into the convention delegates friendly to Judge Owsley. A number of my 
relations were delegates, and took an active part in nominating Judge Ow r sley 
for governor, and to favor his election I was nominated as an elector for the 



THE OWSLEY SPEECH. 



$«5 



State at large. The next day after I heard of my nomination I addressed the 
people of Washington county. From that day until the August ele< rion I 
quit all private and professional business, and devoted my whole time in riding 
and speaking in favor of Judge Owsley. I became alarmed, for, notwith- 
standing the Whigs were in a majority of about nine thousand in the State, 
the judge's election dragged heavily along. Clay and the Whig question had 
to take him in tow, and both have been ruined by him. I devoted nine 
months of my time to his election, when my practice as a lawyer has been 
worth five thousand dollars a year for more than thirty years past. My pe< 1111 
iary sacrifices were met by me cheerfully, and weighed nothing when com- 
pared with his success and that of the Whig cause. I rode over at least fifty 
counties, addressed the people sometimes twice a day, and organized the 
county by a convention of prominent Whigs at night. This 1 say to J 
gentlemen of the committee, not that you are ignorant of it, not that the 
State does not know 7 it, but that posterity may duly appreciate the present 
conduct of Governor Owsley, when the little sycophants of the day, that 
now flutter around him like butterflies in the sunshine, have disappeared 
forever. 

" My son, Rowan Hardin, at my instance, not only devoted the columns 
of his newspaper to Judge Owsley's success, but also for two months rode 
and addressed the people every day. What rewards do we get? The father 
is, by the governor, persecuted almost to death. The son is far off. in a dis- 
tant land, and can yield him nd assistance. This is the judge's way to liqui- 
date and cancel debts of gratitude. It is a cheap way to a man who lacks 
honor, but impossible to a high-minded, honorable man. 

"After the election of Judge Owsley was over, when it was pretty well 
ascertained that he was elected governor, I addressed him a letter, stating 
my willingness to act as his secretary, and assist him in the administration 
of the government, stating in the letter that I would move to Frankfort as 
soon as I could conveniently do it. In a few days Judge Owsley answi 
my letter, stating he was pleased and gratified to find that I would a< 
the office, and that I should have it. In a day or two after I received a 
second letter, appointing the day for me to meet him in Frankfort. About 
a week after that I received by the hands of William Anderson, the grand- 
son of Governor Owsley, a third letter, stating that some of his Whig friends 
had represented to him that my appointment would be unpopular, and that 
he had concluded not to give me the appointment of secretary of State. I 
that letter I returned no answer. In four or five days after that. 1 re< eived 
a fourth letter from Governor Owsley, dated at Lexington, requesting me to 
meet him in Frankfort; that upon further reflection, and upon conversing 
with some Whigs in Lexington, he had altered his mind, and determined to 
give me the appointment of secretary of State. I returned no answer to that 
letter, and did not meet him. The day he was sworn in and took the oaths 

25 



386 



BEN HARDIN. 



of office, he issued a commission for me as secretary of State, and inclosed it 
to me, as I have heretofore stated. 

"I want you, Mr. Chairman, and gentlemen of the committee, to bear 
in mind what was proven by Mr. Wintersmith. That the day before the 
third letter was sent to me, Harry I. Bodley and William B. Kinkead left 
Lexington, and on the next day he saw them in Danville ; and saw them go 
into Mr. Boyle's office, who had married a sister of William Anderson ; 
which was Saturday. That day he saw Governor Owsley in Danville ; and 
that day William Anderson mast have left Danville with the third letter, for 
he got to Bardstown about three o'clock the next day, which was Sunday. 
The distance from Danville to Bardstown is forty-six miles. These facts go 
strongly to show who those Whig gentlemen were that told the governor my 
appointment would be unpopular. These same Whig gentlemen, with the 
kind assistance of his grace, the ' duke,' who is the son-in-law of Mr. Bod- 
ley, have haunted me ever since, like the ghost or specter did Brutus at 
Phillippi. Hence, the desire of Governor Owsley to get me out of the 
office, and, hence, the difficulty of pleasing him and the ' duke.' There is 
nothing I could do would please their mightinesses, because George B. Kin- 
kead must be secretary of State, at all events. You all recollect how he 
was smuggled into the office last winter for a few days. How Mr. Mitchell 
came to be appointed, and where I was from the time of the appointment 
until after the Presidential election, I have already stated. 

"I remained in Frankfort, in the winter of 1845, about ten days after 
the end of the session of the Legislature. I then left for the Nelson Cir- 
cuit Court. I remained there three weeks, and went to the Hardin Circuit 
Court, which commenced the third Monday in March. On Tuesday of the 
second week of the court, I received a letter from Governor Owsley; for I 
had, when I left Frankfort, told him the courts I was about to attend, and 
when ; and if he wanted me, to write to me. The letter requested me to 
come to Frankfort to sign State bonds and coupons. I left Hardin court 
immediately — Mr. Helm states that fact — two weeks of the time yet unex- 
pired. I passed through Bardstown, directing my office there to be broken 
up, and my law and political books to be sent after me to Frankfort, which 
was accordingly done. These facts are proven by John Morton. I got to 
Frankfort three or four days after I left Hardin court, and remained there 
until the fourth Monday in April, making about five weeks. 

" During my stay in Frankfort that time, I signed one hundred and fifty 
State bonds, and sixty coupons for each bond, making nine thousand one 
hundred and fifty bonds and coupons. I lost two weeks of the Hardin 
Circuit Court, one week of the Bullitt court, and two weeks of the Marion 
Circuit Court, which was a loss of at least two hundred dollars a week. 

"The fourth Monday in April, 1845, I went to Washington court; 
remained there about four days. I went from there to the Meade Circuit 



THE OWSLEY SPEECH. 387 

Court; staid about one week; then I went to Vicksburg, took the railn 
and went immediately to Jackson, and the next morning entered the man- 
date of the Supreme Court in the case of Vick's heirs against Prenti 
and returned the same day to Vicksburg, and the same evening took a boal 
and came to Kentucky. When I got to Bardstown, I found that Mrs. Har- 
din had removed our daughter to Bardstown, and that she wras expei ted to 
die every day; it was during those cold rains which frequently come in 
May. 

"I wrote to Mr. Mitchell and requested him to show the letter to (Inv- 
entor Owsley, stating where I had been, and stating that 1 was then at Bards- 
town waiting on my daughter, and that I would return to Frankfort as soon 
as I could leave her. Mr. Mitchell wrote back immediately that he had 
shown the letter to the governor; that they sympathized with me on account 
of my daughter's bad health, and requested me not to leave her until she got 
better. As soon as the summer set in she got better, and I came to Frank- 
fort. All appeared right. I heard no complaint. I was here during that 
summer, except when I went to court. I was not at Bardstown during the 
whole year, except when the Nelson Circuit Court was in session, more than 
three weeks. This is proved by Mr. Morton. 

" Mr. Mitchell swears that in the letter the governor wrote to me at Eliz- 
abethtown, he urged me to move to Frankfort. I do not believe that was in 
the letter. All he said in the letter was, to come to Frankfort to sign State 
bonds and coupons. I intended, at that time, to move to Frankfort, where 
I had opened an office, and engaged in law business in all the courts in 
Frankfort, and some of the adjoining counties. I shortly after engaged 
boarding for myself and wife with Mr. Stealy, at the Mansion House. The 
governor stated in his message that I had been gone for months together, 
and that I had been in the State of Mississippi, thereby intending to make 
the impression that I had been for months in Mississippi, when he knew that 
was not so. How did he know that I had been in Mississippi? From my 
letter to Mr. Mitchell, which was shown to him ; and that letter stated I had 
not been there more than a day or two. When he stated my absent e, why 
did he not state that I remained with my daughter, who was then at the point 
of death, by his permission? And why did he use the word months, when 
he knew that whole time I was gone from Frankfort did not exceed five or 
six weeks? The answers to these questions are obvious— it is in keeping 
with the whole message — that is, not to give the facts fairly as they are. 

"I left this place in August, 1845, by die advice of the governor, and 
went to the Marion Chancery Court, and from there to the Meade Cham ery 
Court, and from there to the Nelson court. At the end of that court I 
returned to Frankfort, and remained there until the 5th of October. On 
the night of the 4th it commenced raining ; at two o'clock the wind shifted 
to the north; the rain continued, but the weather was cold. When I went 



^88 BEN HARDIN. 

to breakfast, I told Colonel Davidson's family that my daughter had died 
that night ; that I knew it from the change of the weather. After breakfast 
I got on my horse in the rain, without great coat, cloak, or umbrella; rode 
to Bardstown — fifty miles — without eating, drinking, or getting off my 
horse. I got to my gate just after dark, and looked through the shade trees 
to the window of the room I left her in ; there was no light ; all was dark ; 
I looked below to the parlor, where my other children had been laid out ; I 
saw a dim and gloomy light. The melancholy tale was told. My heart 
sank within me. I went to the house and mingled sorrow and grief with 
my family. I followed her mortal remains next day to the grave. I was 
unfit for business for some days. I recovered my spirits a little, and 
returned to Frankfort about the middle of November, where I remained 




Ben Hardin's Home. 

until the 24th of February, 1S46. On that day the Legislature adjourned. 
After the adjournment I went to Bardstown. When I got there the Nelson 
court was in session. I attended the Nelson court the balance of the term. 
I attended the Hardin court, and then went to Bullitt court, staid one week, 
and returned to this place about the 10th of April. I staid here about two 
weeks, and went to Washington court ; staid one week ; then went to 
Meade court, and staid about a week ; then to Spencer court, which com- 
menced the third Monday in May, and there I heard the call for volunteers, 
and came to this place about the 20th. I remained until June; went then 
to the chancery court in Nelson ; from there to the chancery court in Har- 
din. I attended a call court in Marion for the trial of Thomas H. Chand- 
ler. From there I came here about the 1st of July, staid until the 1 tth, and 
then I went to the chancery court in Washington. I remained there some- 



THE OWSLEY SPEECH. 

thing like a week ; left there, and came by Harrodsburg to this place, where 
I remained until the 7th of August. The last of June, 1 had two young 
negro men, who engaged in a fight. One stabbed the other seven tin* 
and left him apparently dead, stole a horse, and lied to the county <>i 1. u ie, 
where he had been raised. I got Mr. George Dixon to go in pursuit <>i 
him, and to advertise him. He was, however, unsuccessful. I heard the 
negro was at the vEtna Furnace, with some of his relations, who bel 
to Mr. Churchill, who owned the furnace. I went to Larue and Hart in 
search of him; from Hart back to Larue, and from there to Hardin; then 
to Grayson, and from there to Breckinridge, and struck the Ohio at Stephen 
port, and then up the river to Meade. I there learned that the horse the negro 
stole and rode away was posted near Flint Island. I then became satisfied 
he had crossed the Ohio. I gave up further pursuit and returned to Hards- 
town. When I got back I learned, in about two days, that the governor 
had removed me from the office. My situation is rather a novel one. I 
have lost my negro by reason of not pursuing him in time, and I have lost 
the office of secretary of State for pursuing him out of time. 

"The governor says: 'And though occasionally present, he was not, 
after his appointment, in Frankfort, except while the Legislature was in ses- 
sion — in all not more than about five months of the time.' I came to Frank- 
fort each year, about the middle of November, and never left until the 24th 
of February; that includes the time the Legislature was in session. If lie 
means five months exclusive of those periods, which is the governor's mean- 
ing, I suppose, then I apprehend he is not much wrong. These two 
sessions, commencing with the time I came, and calculating up to the time 
I went away, would make about six months and one-half; add that to the 
five months, would make eleven and one-half months out of one year and 
nine months and a half. Because the first two months, while I was a candi- 
date for an elector, the lost time in consequence thereof ought to be 
deducted out, as by an agreement with the governor, before I accepted the 
office, I was to be absent until the presidential election was over. 

"I would inquire, if even the secretaries of State, whose families reside 
in Frankfort, were in the secretary's office more hours, in one year nine 
months and a half, than I was? In the secretaries I will include Jud 
Owsley, who was secretary to Governor Morehead. He practiced law 1 
the Court of Appeals, General Court, Federal Court, and Franklin Circuit 
Court, and also in the Garrard Circuit Court, and got a full practice in all 
the courts he attended. He, it is true, I have no doubt, was in Frankfort 
more hours each year than I have been, but he was in his law office and in 
the courts a great part of that time. Was Mr. Harlan, who was try 

to Governor Letcher, in the office of secretary of State more hours than I 
have been? I should suppose not. He practiced law in the 
Appeals, Federal Court, General Court, Franklin Circuit Court, and ! 



390 



BEN HARDIN. 



the Boyle, Mercer, Anderson, and Jessamine Circuit Courts, and got a full 
practice. Now, count the number of days those courts were in session, and 
the time he would be employed in his law office, in Frankfort, and engaged 
in the courts at Frankfort, and then you will perceive he did not devote as 
many hours to the secretary's office as I did, within the same time. I think 
I may say the same thing in reference to the other secretaries who were 
lawyers and attended to their professions. The only difference between 
Judge Owsley, Mr. Harlan, and some other secretaries and myself, is this : 
that when I attended the courts, I was off at a distance, and my wife was 
not living here — they lived in Frankfort, and their families were here. 
When I was here I was always in the secretary's office ; when they were 
here, they were in their law offices, and with their families. 

"After I was secretary, I discontinued my practice in Mississippi, in the 
winter, and also quit practicing law in Breckinridge and Grayson counties. 
These facts are proved by Messrs. McFerran, Smith, and Helm. I lost half 
of the term times of Marion, Washington, and Bullitt counties. These facts 
are proven by Parker C. Hardin, Doctor Palmer, and Henry C. Thomas. I 
lost two weeks of the Hardin Circuit Court, and part of the two terms of the 
Nelson Circuit Court. I have no doubt I could prove by lawyers well 
acquainted with my practice, that, in their opinion, I have lost two thousand 
dollars a year since I have been made secretary of State, by quitting some 
courts and only partially attending others. The law business I undertook in 
this region of country I gave up for reasons which I will give in another part 
of this speech. 

"I contend, Mr. Chairman, that since the presidential election, up to the 
ist of September, 1846, 1 spent as much time in the secretary's office as any 
other secretary who practiced law ; and I made heavier sacrifices in doing it 
than any other secretary. I am well aware that Mitchell states that from the 
end of the last Legislature up to the ist of September, 1846, I was here but 
three times. That is not a fact. I was here in April ; stayed about two weeks 
here in May, from the 20th to the ist of June; and here about the ist of 
July, and stayed until about the nth, and returned again the 24th, and left 
the 7th of August, 1846. 

" How does Mr. Mitchell know the time I was in Frankfort, and how long I 
stayed each time ? Did he keep a memorandum of the times ? When questioned 
on that, he said he did not. He was asked if there was any public memoran- 
dum kept that would give the time ? He said there was not. He was asked 
then, how did he know ; had he any data to go by ? He said he had not ; but 
he said he knew the governor's calculations were correct. He was then asked 
if the governor, in his message, said I was only here five months in the two 
years or five months in each year ? He said he could not state, but still per- 
sisted that he knew that the governor's statements in his message were right. 
These questions were put by myself and some of the committee three times, 



THE OWSLEY SPEECH. 



39' 



and three times he gave the same answer. Mr. Kinkead beckoned to him ; he- 
then left the witness' stand and went to him. They whispered together ; he- 
returned to the stand, and the first thing he said was: I will ask Mr. Har- 
din if the governor's statement is not correct? The chairman of the I om- 
mittee instantly said: You have no right to put a question to Mr. Hardin. 
He then, for the first time, said he found a paper in the drawer of the table 
at which I sat, when in the secretary's office, in my handwriting, from whit h 
he and the governor, on the ist of September, 1846, made the calculations 
as to the lost time; and by those calculations made his statements in his 
message. He was asked by one of the committee : was it a private or pub- 
lic paper? He said it was a statement made by me of the time I boarded at 
Colonel Davidson's; that some time before the ist of September. 1846, he- 
saw the paper in the table drawer, and when the governor, on the day he- 
made the entry of my removal, asked him if he (Mr. Mitchell) had any note 
or memorandum showing my lost time, he said there was this account <>f 
mine in the table drawer, and at the request of the governor he got it out of 
the drawer, and from it they made a great part of their estimates; that the 
governor kept the paper until some time in September. I came to Frank- 
fort and asked him to get all my private papers out of the secretary's office ; 
that he went and got them; that upon looking them over I asked for tin's 
memorandum ; that he went into the secretary's office and asked the gov- 
ernor for it. He handed it to him, and, at the request of the governor, he 
took a copy of it, gave the governor the copy to keep, and then brought me 
the original. That he did not get my permission to take a copy, nor did he 
tell me he had taken a copy ; that the governor has the copy now. I believe 
upon that part of Mr. Mitchell's evidence, I have recited it about as he gave 
it in ; however, if I am incorrect in any particular, the recollection of the 
committee will enable them to correct me. It is not my intention to mis- 
represent one word said by Mr. Mitchell. 

"Mr. Chairman, the history of that paper is this: Colonel Davidson 
occupied the house he now lives in, as my tenant for near eighteen \ 
until July, 1844, when he purchased it. He had a lease for one year, which he- 
kept, and no more ; he took good care of the premises — made some repairs. 
He stayed after the first year upon the same terms, without any lease ; he kept 
all the accounts; he paid money for the town tax, and charged me with it; 
he paid my own taxes to the sheriffs of Nelson, and also the taxes on some- 
non-residents' lands that I was agent for, and gave me, at times, money. I 
kept no account, and knew nothing of the state of our moneyed matters ; I 
trusted all to him ; I have no doubt he did me justice ; we never settled, and 
I expect we never will, as to the renting. I believe Colonel Davidson is one 
of the most upright persons I ever knew, and his heart is as near the right 
place as any person I ever saw, unless it be Mrs. Davidson, and, if possible, 
her heart is nearer right than his. When in Frankfort I generally stayed with 



39 2 



BEN HARDIN. 



him ; he was the owner of the house when I was made secretary. I told 
him I wanted him to fit up my office for me, and that I would board with 
him until Mrs. Hardin came to Frankfort to live. When I was first made 
secretary I stayed at the Weisigar House until my office was ready for me. 
I took possession of it and commenced boarding with Colonel Davidson 
about the ist of December. I made no bargain with him as to the price I 
was to pay. I paid him from time to time, and he generally drew my salary 
as secretary and handed over to me what he said was coming to me. I 
know not now how our accounts stand. 

"Last May I asked him how my boarding account stood. He said he 
did not know. I asked him the price of my board. He answered, and said 
he did not know that, but that we would fix it. He said he kept no account 
of the time I had been at his house since I was secretary. He then requested 
me to make some estimate, which I did, when I went to the secretary's office, 
with the intention of showing it to Colonel Davidson and Mrs. Davidson, to 
correct it, if there were any errors in it. The original will show it only to 
be a mere guess as to when I went first to board, and each time I left there, 
and when I returned. The first writing has no date, but the same pen and 
ink are used down to last May, which shows the first writing was done then. 
The next writing was done the 7th of August, as will appear by the same 
pen and ink being used in setting down the account from May till August. 
The paper will show conclusively, from the wording of it, that it was only a 
mere estimate, without any attempt at certainty. Upon looking it over, the 
date as to the time I came here last May is wrong by seven days, as will 
appear by commissions which I signed, and entries on the executive journal, 
and also by a letter I got on the 23d of May; I hold it now in my hand, 
and will exhibit it hereafter. 

" How could Mr. Mitchell tell how much of my time I was here before 
I went to board at Colonel Davidson's, after my appointment as secretary? 
He was not here until near Christmas. Mr. Tilford acted for him. I have 
the original estimate now in my hand — if the committee want to see it, I will 
show it to them. Governor Owsley has what Mr. Mitchell calls a copy. 
Why does he not show it, that we may compare it with the original, and see 
whether it is a true copy or not ? But the same men who could be base 
enough to look over a man's private papers, and take copies from them to 
I >.isc a false accusation against him upon, could take a false copy; and that, 
1 have no doubt, is the reason why the copy is not produced. 

" If I had not the original here, the copy would have been produced long 
ago, and sworn to by the ' duke.' That copy, if correct, will show that I was 
here four times between the end of the last session of the Legislature and 
the 1 st of September, 1846, instead of three times, as Mr. Mitchell has tes- 
tified. The copy, if a true one, will contradict his oath; and if not true, 
the original will contradict the copy. His grace is a cunning man of his 



THE OWSLEY SPEECH. 

age, and the governor, his adviser, is a man skilled in adroitness and 
fice. Mr. Mitchell went into a long dissertation to prove when a papei w is pri- 
vate and when public, and so did William Anderson. Their reasons and 
ethics are the doctrines of the same person; and. when simplified, amount 
to this: that the table was public property, so was a private paper inside the 
drawer. That is about such reasoning as Withers, the landlord, near Law- 
renceburg, some years ago employed. Young McKnight came from Louis- 
ville, on his way to Danville, with a large quantity of money, sent by the 
Bank of Kentucky to the branch at Danville. He came in a public St 
with the money; he put up at a public house, with the money ; and as tin- 
stage and house were, to some extent, public. ergo y the money was public 
money, and he had a right to appropriate it to his own use. I care nothing, 
Mr. Chairman, about the paper. The manner in which his grace and the 
governor got it shows what kind of men I have to deal with. 

"Since the days of Algernon Sidney, during the reign of that tyrant, 
Charles II., and the judicial despotism of that blood-thirsty monster and 
scoundrel, Lord Chief-Justice Jeffries, has any man's private papers, without 
his name to them, been taken from the place where he put them, as pn Nate- 
property, and used as evidence against him, to degrade and disgrace him 
and his family, by a punishment worse than Sidney suffered, until it has 
fallen to my lot ? 

" Mr. Chairman, I admit; as I have before remarked, that I intended to 
bring my family here. When I formed that determination 1 had no white 
family but Mrs. Hardin and myself. About the ist of May, 1845, tne doc- 
tors, who attended on my daughter, informed her and her relations that she 
must die in a few months of the disease that then afflicted her. In that situ- 
ation she desired to be brought to Bardstown, my residence, where she had 
been born and raised, that she might die there and be buried in the public 
graveyard, by the side of her brothers and the rest of my family. Her 
request was complied with. She was brought to my house the ist ol May. 
1845, and her children, then six in number— one has since died, before its 
mother. She died the 5th of October, 1845. Her mother promised her to 
take care of and raise her children, which she has done. 

"Rowan Hardin started to join the army in September. 1845 ; he left a 
wife and seven children, the eldest not nine years old. Mrs. Hardin has 
that family to take care of. She now has twelve grandchildren, and all but 
two under ten years. Thus situated, she could not move to Frankfort. 

" Why I did not resign, and have not yet resigned my office oi 
of State, I will explain hereafter; that explanation will be more appropria 
when I come to speak particularly of the manner Governor Ow.l 
administered this government. 

"Mr. Chairman, I have reluctantly gone into this detail ol my tanvl; 
afflictions, for it only awakens feelings of grief and sorrow, to show 1 



394 BEN HARDIN. 

did not act in bad faith when I said in my first letter to the governor that I 
would move to Frankfort. Those misfortunes, through the dispensations of 
an all-wise and just Providence, were brought upon me ; over which I had 
no control, and to which I must, and do, bow with humble and dutiful sub- 
mission : ' For the Lord giveth, and the Lord taketh away — and blessed be 
the name of the Lord.' 

" Governor Owsley knew that I had abandoned the idea of moving my 
family here, when he became reconciled to me on the 3d of January, 1846, 
which reconciliation was based on the fact that I was to remain in office the 
constitutional time, if I chose ; for nothing was said, or even intimated or 
hinted at, about my resigning, for if it had, I would not have made it up, but 
fought the battle out. 

"We are now brought to the inquiry: Where was my residence since 
the presidential election ? I had my office here ; I boarded here, and was 
here about five months and a half each year. The residue of my time was 
spent at courts. Not more than eleven weeks, put all the times together, 
were spent at Bardstown ; eight of those weeks were spent at the Nelson 
Circuit Courts. The other three weeks, as proved by Mr. Morton, that were 
spent at Bardstown, were only calls there, from time to time, when passing 
from court to court. Mrs. Hardin resided at Bardstown, taking care of her 
helpless grandchildren. I had broken up my office in Bardstown, and 
opened it in Frankfort. 

" I have not attended any election in Bardstown since 1844. I have been 
at Frankfort at each election for 1845 an d 1846. I did not vote here, 
because I was afraid that some person might indict me for voting out of my 
county, and put me to much trouble. I did not go to Nelson county to vote, 
because I did not consider myself entitled to vote there. These facts are 
substantially proved by Colonel Davidson. As to what Mr. Mitchell swears 
on that subject, I have no recollection of saying a word to him about it, and if 
I did, I know I never said what he has repeated. The question of actual resi- 
dence, I admit, is not free from doubt and difficulty; but yet, if important 
in a constitutional point of view, I ought to have been heard before the gov- 
ernor decided it. But the governor, the 'duke,' and Mr. Kinkead could 
not wait. 

"It is now my design, Mr. Chairman, to invite the attention of the com- 
mittee to that part of the governor's message which reads in these words : 
' So highly important was the subject in the estimation of the Legislature that, 
as far back as the 21st of December, 1795, an act was passed by that body 
ordering that the auditor, treasurer, and secretary shall reside at Frankfort.' 
The first question is : Is that act now in force ? The next question is : Can 
a man be appointed secretary of State who lives out of Frankfort ; and if he 
can, when does he forfeit the office by not moving into Frankfort? I shall 
contend that the law is not in force as to the secretary. He is an officer for 



THE OWSLEY SPEECH. 



395 



the State at large. He is secretary for the whole State — in its length and 
breadth, from Mill's Point to the mouth of Big Sandy, and from the Ohio 
river to the Virginia and Tennessee lines — and that the Constitution givi 
to him the right to live anywhere in the State. 

" I will call the attention of the committee to the eleventh section, an. 
six, of the Constitution of Kentucky, which reads in these words : 

"'Section ii. All civil officers for the Commonwealth at large shall 
reside within the State, and all district, county, or town officers within their 
respective districts, counties, or towns (trustees of towns excepted), and shall 
keep their respective offices at such places therein, as may be required by 
law; and all militia officers shall reside within the bounds of the division, 
brigade, regiment, battalion, or company, to which they may severally 
belong.' 

" Whether the act of 1795, referred to by the governor, is in force or not 
will depend on the clause of the Constitution just read by me, and this clause 
of the Constitution relied on by the governor, which 1 will read. It is the 
first section of the schedule of the Constitution, and reads in these words : 

" ' Section i. That the laws of this Commonwealth, in force at the time 
of making said alterations and amendments, and not inconsistent therewith, 
and all rights, actions, prosecutions, claims, and contracts, as well of indi- 
viduals as of bodies corporate, shall continue as if the said alterations and 
amendments had not been made.' 

" The Constitution was signed and published on the 17th day of August, 
1799, to take effect on the last of June, 1800. If the law is inconsistent 
with the Constitution it is void. The act says the secretary shall live in 
Frankfort. The Constitution says he shall reside in the State. Permission 
to live in the State is expressly given, and it amounts to nothing more or 
less than this: Live where you please in the State; select your own resi- 
dence. A law, then, that says his residence shall be in Frankfort is .1 
restriction on the constitutional privilege of residence, and to that extent 
inconsistent with the Constitution and void; of that there can be no doubt. 

"To simplify it to the common occurrence of life: I say to my son or 
servant, that during the approaching Christmas holidays you shall not go out 
of Frankfort during those days. Two days afterward, and before Christ- 
mas, I give him permission to go where he chooses, during those d 
of rest and festivity, provided he does not go out of Kentucky. Is not the 
last permission much more extensive than the first; would not my son or 
servant understand that the last permission gave him the liberty to go oul 
Frankfort without violating my order, provided he did not go out of the 
State? If you do not give to the Constitution the construction I contend 
for, then it has no meaning at all. If the act of 1795 is not inconsistent 
with the Constitution in the particular pointed out, then there is no force in 
our language, and words have lost their meaning and signification. The 
Constitution is paramount to any act of Assembly, whether the same was 



396 BEN HARDIN. 

passed before or after the formation of the Constitution. By the Constitu- 
tion, a justice of the peace is to live in the county for which he is commis- 
sioned to keep the peace. There is no other or further constitutional restric- 
tion upon his residence than that. Two years ago the Legislature passed an 
act to allow an additional justice of the peace, to reside near Briggs' mill, on 
Caney. That bill the governor refused to approve and sign, because the 
bill restricted the residence of the justice, to be appointed, to a smaller 
space than Ohio county. The Legislature sustained the veto by an almost 
unanimous vote. The bill and veto read in these words : 

; ' * Gentlemen of the House of Representatives : 

" ' Entertaining the opinion that the enrolled bill entitled: "An act to 
authorize the appointment of a justice of the peace in Whitley county, and 
for other purposes," which has been presented to me for my approval, con- 
tains a provision repugnant to the Constitution of this State, I return the 
same with my objections to the House of Representatives, in which it origi- 
nated. 

" 'The fourth section of the bill is in the following words: 

" l Be it further enacted, That there be allowed to the county of Ohio an 
additional justice of the peace, to reside at or near Briggs' mill, on Caney. 

" ' In thus requiring the justice to reside at or near Briggs' mill, I think 
the General Assembly transcended its constitutional limit, and invaded the 
power of the County Court of Ohio. The eighth section of the fourth arti- 
cle of the Constitution requires the county court, when a justice of the 
peace shall be needed in the county a majority, of all its justices concurring 
therein, to recommend to the governor two proper persons to fill the office, 
one of whom shall be appointed. Justices of the peace are county officers, 
and, according to another provision of the Constitution, must reside in the 
county for which they are appointed. It would, therefore, be a violation of 
the Constitution for the county court of any county to recommend persons 
not residents of their county as proper persons to fill the office of justice of 
the peace. But the power of recommendation, conferred by the Constitu- 
tion, implies necessarily, I think, the right of the county court to select 
from the whole county two proper persons to fill the office. If this be not 
the fair construction of the Constitution, the power of recommendation may, 
by Legislative enactment, be cut down and reduced to an idle ceremony. 
For if it be competent to require, by law, the justice to reside in a particular 
neighborhood, upon the same principles, the justice may be required to reside 
in a particular house, and, therefore, nothing left to be done by the county 
court in its recommendation, but register the names of the persons directed 
by the Legislature. 

'"WILLIAM OWSLEY. 

"'January 20, 1845. 

" ' The said bill reads as follows, viz : 

" ' Section i. Be it enacted by the General Assembly of the Co7nmonwealth 
of Kentucky, That Whitley county be allowed an additional justice of the 
peace, to be commissioned by the governor. 

" ' Sec. 2. Be it further enacted, That there be an additional constable 
allowed to said county of Whitley, to be located in the district of Henry D. 
Harman, a justice of the peace for said county. 



THE OWSLEY SPEECH. 



397 



"'Sec. 3. Be it further enacted, That there shall be appointed for the 

county of Harlan, one additional constable, who shall reside in the distru t 
of Abraham Slusher, a justice of the peace of said county. 

" 'Sec. 4. Be it further enacted, That there be allowed to the count] 
Ohio one additional justice of the peace, to reside at or near Bl mill, 

on Caney.' 

"Now, I should be glad to know the difference why a bill, passed after 
the Constitution was made, would be unconstitutional, when a similar 
before it, would not be. If one bill is inconsistent with the Constitution, 
so is the other; and no man can see the difference but the governor alone. 
One is my case, the other a justice of the peace of Ohio county, and he 
vetoed the bill for the justice in Ohio county because he knew my 1 
would occur. I may be under some delusion on this part of the subj 
but it does seem to me that there can not be a plainer proposition presented 
to the mind of man, than that the act of 1795 is inconsistent with the Con- 
stitution made in 1799. 

" There are two ways of repealing an ordinary act of the Legislature ; 
one, by a subsequent law repealing a previous one in so many words; the 
other, by a subsequent act, that is incompatible or inconsistent with it. B) 
the same rule, a subsequent will revokes a previous will, or a subsequent 
contract contradicting a previous one, abrogates it. 

"The next branch of the question is: Suppose the governor is right 
(which is a hard thing to suppose), that the secretary must live in Frankfort 
or lose his commission of secretary of State, ami that a residence out of 
Frankfort vacates his commission, then, is he qualified to receive the com-' 
mission at all, living out of Frankfort? If he can not hold it and live out 
of Frankfort, he can not, in the first instance, be vested with the commission, 
because the law gives no time to move into Frankfort. The conclusion just 
stated would follow if the non-residence prevented him from holding the 
commission. But if the act of 1795 is still in force, it does not. it can not. 
in its consequences, ipso facto, vacate the commission. It is only directory 
on the secretary as part and parcel of his official duty; and if he does not 
perform it, what is the penalty ? None is denounced by the act. Whether the 
Senate would consider it such a misdemeanor in office as to remove him on 
impeachment, with all the other disabilities which would follow or not. has 
never been determined, and I think never will be. in the affirmative. 

ho is living in Kentucky, who is laboring under no disability, but 
local residence in Frankfort, can accept the commission and hold until 
removed. Even if the governor is right, that the statute of 1705 is in full 
force and virtue, whenever you arrive at the conclusion that a man who d< 
not reside in Frankfort when appointed can receive the commission and be 
vested with the office, and can hold it until divested of it. either by impeach- 
ment or scire facias, as the governor can not try either, it follows, as a con- 
sequence, that he has no power to vacate the commission by any entry he 



man w 

a 



39» 



BEN HARDIN. 



can make on the executive journal. There is but one way, in this country, 
and that is pointed out by the Constitution, which is, impeachment. To illus- 
trate my meaning more clearly and distinctly, I will refer to the doctrine of 
deeds and descents. If the grantee has no power to take the estate granted, 
nothing passes by the deed or patent. If land is devised or willed to an 
alien, he can take and hold until an office of escheat is found, divesting him 
of the land and vesting the same in the government. 

"An alien can not take by descent. If a man dies and has no heirs 
who have inheritable blood, the land passes instantly to the government, 
because it can not descend to the alien ; and all that is required is an office of 
inquisition to inform the government, of record, that it owns the land. 

1 ' So with the office of secretary of State. If he can not take, for want 
of residence in Frankfort, then nothing passes; if he can take, then a judi- 
cial proceeding is necessary to divest him of it. A circuit judge has been 
decided by the Court of Appeals (in the case of Banks vs. Commonwealth, 
A. K. Marshall, 550;, to be a judge for the State at large; and notwithstand- 
ing an act of Assembly, passed the 16th of January, 181 7 (Morehead and 
Brown's Digest, Vol. I, page 375), requiring him to reside within his circuit, 
and if he does not, declares his office vacated ; yet we know many of them 
do not, and have not resided within their circuits; and no person has ever 
presumed, for a moment, that the office of the judge was vacant. The rea- 
son was, that by the Constitution he was a judge of the whole State, and 
that no law could deprive him of his office by locating him in any circuit, 
or at any place ; and the most that could be done by legislative enactment 
was to denounce a pecuniary penalty against him if he did not comply with 
the requirements of the law as to residence. 

" To establish the proposition that a man can take the office of secretary 
of State, and hold it, and at the same time he takes and holds it, not be a 
resident of Frankfort, I will call your attention, Mr. Chairman, to the usages 
of this government from 1804, and which usages may be considered as 
establishing the doctrine, incontestibly, that I contend for. 

" Elisha Macurdy proves that John Rowan was made secretary to Governor 
Greenup, in 1804, and resigned in 1807. Jeptha Dudley proves the same 
fact. Mr. Dudley also proves that Mr. Rowan moved to Bardstown in 
June, 1805, was elected to Congress from that district in 1806, and that he 
never, after he removed to Bardstown, in 1805, lived in Frankfort. Mr. 
Dudley also proves that Mr. Grayson was commissioned secretary for the 
residue of Governor Greenup's time, after the resignation of Mr. Rowan, 
and he never lived in Frankfort. Mr. Breckinridge was secretary to Gov- 
ernor Adair, and he never resided in Frankfort. Mr. Bledsoe was the sec- 
retary to Governor Scott, and he never resided in Frankfort. Mr. Barry 
was secretary to Governor Desha, and he never lived in Frankfort. George 
Robertson was the secretary first appointed by Governor Metcalfe, and he 



THE OWSLEY SPEECH. 399 

never lived in Frankfort. Lewis Sanders was secretary to Governor 
Breathitt, and he never resided in Frankfort. Sanders, after the death 
Governor Breathitt, continued a part of Mr. Morehead's time. When Gov- 
ernor Letcher appointed Mr. Harlan, the 1st of September, he resided in 
Harrodsburg, and moved to Frankfort the February following. When < iov- 
ernor Owsley appointed me secretary he knew I lived in Bardstown, whii h 
is a clear admission on his part that I was capable of receiving the appoint' 
ment. 

" I have, Mr Chairman, gone through the governor's four specifications, 
to-wit : that I would not speak to him. I have disproved that in poinl 
fact. I have noticed the specification that, when here, I would not attend 
to my business as secretary. That I have proved not to be true. I have 
remarked upon the law and facts of the other two specifications, and have 
respectfully submitted my views to the committee. The governor says : 
' With these facts before me, I entertained no doubt that the contingency 
had occurred — upon the happening of which the continuance of Mr. Il.ir- 
din in office was made to depend — that there existed a forfeiture of his oflft 
and that it was virtually abandoned and vacated. Accordingly, on the 1 St 
of September last, I caused to be entered on the executive journal that the 
office was vacated, and thereupon commissioned George B. Kinkead, Esq., 
to fill the vacancy until the end of the present session of the General Assem- 
bly.' 

" I have been, Mr. Chairman, at a loss to comprehend exactly what the 
governor means to assert by the part of his message which I have just read. 
Does he mean to say that the office of secretary was vacant, by abandon- 
ment, without his declaring it so ; or does he intend to say that it was his 
judgment, based upon what he calls 'official delinquency;' or, what is 
called by my Lord Coke, non-user, that created the vacancy? I will first 
endeavor to show, and if I do not misunderstand the facts, conclusively 
prove, there was no official delinquency or non-user; and, secondly, there 
was no abandonment; and, thirdly, the governor had no right to enter up his 
judgment upon the case, declaring the office vacant. 

"Mr. Chairman, if I can comprehend exactly what the governor intends 
by charging me with an abandonment of the office of secretary of State. 1 
will reply to that by a flat, unqualified denial. 

" The investigation of that question makes it necessary to inquire into the 
facts, and also the legal conclusions and consequences growing out <>t the 

facts. 

" The governor says, in his message, that the office of secretary of St 
< may, with propriety, be denominated a ministerial office.' I do not dispu 
the proposition that the office of secretary of State is entirely ministerial. 
All offices that are not legislative or judicial, must, of necessity, be exclu- 
sively ministerial or executive. Those two expressions are convertible terms, 



400 



BEN HARDIN. 



and mean the same thing, when applied to every executive officer in the gov- 
ernment but the governor himself, and he has legislative functions to perform 
in approving and signing laws. 

" I will lay down another proposition of the law that is equally clear and 
indisputable, that all ministerial officers can act by deputy : such as sheriffs, 
constables, and clerks (see Bacon's Abridgement, title Offices and Officers, 
letter L). And in the same book and page, it is laid down, that a deputy 
has just as much official power as the principal. Holt, chief-justice, says, 
' that a deputy can not regularly have less power than the principal.' The same 
principle is to be found in Salkeld's Reports, page 95. Whatever a minis- 
terial officer can do officially, can be done by his deputy. Surely there can not 
be a shadow of doubt as to that principle of law. 

" By the principles of the common law, I have a right to a deputy or assist- 
ant secretary. A statute passed the 24th of December, 1805, which author- 
izes the secretary of State to employ a deputy or assistant secretary ; that 
assistant is now paid by the government. This statute was only cumulative, 
and does not in any manner effect or repeal the powers given by the com- 
mon law to appoint a deputy ; nor does it repeal or restrict his powers to 
act for and in his principal's name, although the governor supposes that the 
deputy or assistant can only do business in the name of the secretary when 
sick or necessarily absent. I think the governor has only made that suppo- 
sition for my benefit, and for this especial occasion. 

"The practice of all the secretaries of Kentucky has been different. 
Mr. Harlan says it was different with him— that the assistant signed his 
name, in many instances, when he was present. Mr. Mitchell has signed 
my name in a number of instances when I was sitting at an adjoining table. 
The governor can not forget that, when he wanted to treat me with neglect, 
and render me a cypher in the office, he would call Mr. Mitchell into his 
room ; there they would hold a conversation and determine between them- 
selves who should have an office. Mr. Mitchell would come into the room 
where I sat, get a blank, go to the governor's room, fill it up, the governor 
would sign it ; Mr. Mitchell would then put my name to it in the governor's 
presence, then come back into the room where he and myself stayed, and put 
the seal to it, and enter the same on the executive journal, which would be 
the first intimation I would get of the appointment. These things were 
enacted nearly every day in my presence, without saying a word to me 
except indirectly and impliedly to say to me, ' You are of no account, and 
we do not want you here ; you are in the way.' Lest the governor's recol- 
lection may not serve him, I would ask him if this was not done at the time 
he appointed Mr. Shanklin Commonwealth's Attorney, in place of George 
Thurman, resigned, and if it was not done the Saturday before the August 
election, in 1845? Get the commission, and you will see that it has my 
name written by Mr. Mitchell. To remind the governor, and Mr. Mitchell, 



THE OWSLEY SPEECH. 401 

also, if they were here on the witness stand, I would ask them if they did 
not recollect the facts as I have stated them ; and that when I saw the entry 
on the executive journal, that I went into the governor's room and said to 
him that John Shuck, of Lebanon, would have been a better appointm 
and if to that remark the governor did not reply that Shanklin had been his 
warm friend in his election; and if I did not, in answer to that, state that if 
that was to influence his choice, so had John Shuck been. 

"Has not Mr. Kinkead permitted Mr. Mitchell to sign his name t<> 
official papers, and that with the governor's knowledge, and when lie was 
either present, or not sick, or absent on necessary business? To prove that 
fact, I have read to you, gentlemen of the committee, a pardon for a con- 
vict in the penitentiary, executed by the governor and Mr. Mitchell for 
Mr. Kinkead; and that the pardon was thus executed. Mr. Kinkead 
admitted. By virtue of that pardon, the keeper released the convict. I will 
further state, that Austin P. Cox acted as the assistant of Governor Owsley 
when he was secretary to Governor Morehead, and that Mr. Cox was in the 
daily habit of signing Governor Owsley's name as secretary to all offi< ial 
papers in the presence of the governor. Mr. Cox is now in town; he is 
unable to get here. I will, before this case ends, prove the fact by his ( cr- 
tificate. 

" Mr. Chairman, you have already been informed that I had an assistant 
secretary; a person well qualified, and selected by the governor; that he 
lived in Frankfort, and that the secretary's office was kept on the Capitol 
Square, and that, except when the Legislature was in session, and when the 
volunteers were offering their services and the governor was accepting com- 
panies and signing commissions to the officers, there was no press of busi- 
ness in the office, and that the whole of the ordinary business of the office 
did not take more than one hour's work a day, on an average ; and when 
the governor attempted to remove me, there was no business to do in the 
office, nor had there been any for two days. That myself, or deputy, was 
never absent; always here, claiming the office of secretary of State, and 
doing the business of the office. I gave the assistant secretary all the fees of 
office, as a compensation for my occasional absence. I will ask the gover- 
nor at what time was it when the office was abandoned? If, at times. I was 
not there, was not my deputy there? If a clerk or sheriff is absent from 
his office a week, or a month, or two months, and, during the times of his 
absence, has well-qualified deputies doing the business in the name of the 
principal, is that an abandonment of his office? An abandonment of office 
depends upon the intention of the officer— the </i/o ammo with which he 
leaves the office. 

"If I should go to Texas to look at the country, or Oregon, with the 
intention to return, and do return, although I may be gone for one, two, or 
three years, I do not lose my citizenship in Kentucky. 

26 



402 



BEN HARDIN. 



"Upon this same principle did Congress and the government of the 
United States claim Richard Mead of Spain, and demand his release from 
prison. Mead had been in Spain a number of years before he was in prison. 
He went to trade and speculate, and did not intend to expatriate himself; 
and hence the government of the United States demanded him, and he was 
released by the government of Spain. 

" This same principle is recognized by the Senate in the contested elec- 
tion of Williams and Mason, where men were allowed to vote who had been 
in Texas for years looking at the country, but intended to return, and did 
return. They voted before they had been back one year. So the question 
came fairly before the Senate. 

"The same principle was admitted by the House of Representatives in 
Congress in the contested election of Moore and Letcher ; and the same 
principle is fully established in all admiralty cases in Great Britain and the 
United States. 

"Now, Mr. Chairman, test the facts by the rule laid down as to aban- 
donment, which is incontestibly correct. I ask you, when did I abandon 
the office of secretary of State ? The governor says I was absent at different 
times during the year 1845. Was I not here during the last session of the 
Legislature, doing the business for three months together, without the loss 
of one day. I was absent from the 24th of February, 1846, until about the 
10th of April, 1846. Did I not return and do the business then, until the 
fourth Monday in April, 1846 ; and, although I left and returned at different 
times during the spring and summer, did I not, at each time I returned, 
claim the office and do the business myself? When I returned the last time, 
about the 24th of July, and stayed until the 7th of August, 1846, did I not, 
during that time, claim the office and do the business of it in the same room 
with the governor ? I did ; and with his consent and approbation ; which 
proves, up to that time, I had not abandoned the office, but was in office, 
and so admitted by the governor. 

" I was gone the last time from the 7th of August to the 1st of Septem- 
ber, 1846, hunting a runaway negro, who had, according to the opinions of 
the doctors who attended the negro he had stabbed, committed, in all prob- 
ability, murder ; and during all that time I had a deputy in the office doing 
the business in my name, with the consent of the governor, and, besides his 
salary, getting the fees of the office as extra pay from me. Was that absence 
of three weeks and four days an abandonment ? Because the other times of 
absence can not be added to that; for, at the end of each previous 
absence I had returned, claimed the office — my claim was admitted by the 
governor — and I did the business of the office. 

" I ask you, Mr. Chairman, and the honorable committee, to respond to 
this question — and I demand of the governor an answer — was not my claim 
and right to that office admitted ? And did I not, by my deputy, do the 



THE OWSLEY SPEECH. 






business of the office on the ist of September, 1846, when m\ Dame, on 
that day, was, by the deputy, signed, in the presence ol Mr. Kinkead 
the governor, to sixty patents ? Does not the order appointing Mr. Mitchell 
the assistant of Mr. Kinkead admit he was my deput) up to that moment 
by using the words 'appointed and continued?' Continued ho* ? V. 
as my deputy, if Mr. Kinkead's appointment was not legal. Mr. Mu< hell 
swears to that fact; that it was so worded at his instance, and with that 
intention. The governor read the order, thus worded, and approved of it, 
as by law he was bound to do ; and so it is stated in the fat e ol the order ; 
to meet the contingency that if the Senate should decide that thi rnor 

had no right to remove me, then I had no right to remove him, although 
at that time I had made no attempt to remove him, nor did he or the 
ernor know I would make any such attempt. Their object was to continue 
him in office, at all events ; because the ' duke' must have his salary, as part 
of his means to support his new dignity. That puts me in mind of an ane< - 
dote that occurred some few years ago at Bardstown: Mr. Turner Wilson, 
a neighbor of mine — one that gambled sometimes, and had caught a few 
of the cant phrases of the craft — a man of fine sense and wealthy — was 
taken very sick, and about to die. Rowan Hardin, who was extremely fond 
of him, started from Bardstown one day to go to Mr. Wilson's residence, to 
see him. On the road he met a Methodist preacher. He asked him where 
he had been. He said he had been to see Turner Wilson ; that Mr. Wilson 
was about to die, and had sent for him. Then they parted ; the Methodist 
preacher came on to town; Rowan Hardin continued on to the house of 
Mr. Wilson. When he got there he found him just at the point of death, and 
a Catholic priest with him. When the priest left, Rowan remarked to Mr. 
Wilson, ' What does this mean, Turner ? I met a Methodist preacher on 
my way here, and he said you had sent for him; and when I came here, I 
found a Catholic priest.' Mr. Wilson replied: 'Oh, Lord! Rowan, I am 
almost dead — I want to take all the chances!' So with Mr. Mitchell and 
the governor — their case is so very bad that they want to take all the 
chances ! 

"Mr. Mitchell drew his quarter salary from the ist of July to the ist 
of October. Two months of that time was before the appointment of Mr. 
Kinkead. Then, that two months w^as his salary as my deputy. Thi 
facts were all known to the governor when he sent in his nomination of Mr. 
Kinkead, accompanied with his message and declaration of war against me. 
also his manifesto setting out his reasons for the war. 

" Mr. Mitchell says the governor advised him not to put my name to the 
patents. That advice was only colorable to save appearances. Like a jus- 
tice of the peace who loves to see a fist fight between two men. he will in a 
loud voice command the peace, and in an undertone, at the same time, say, 
stand back, boys, fair play ! 



<qa BEN HARDIN. 

" Mr. Chairman, you recollect the account Mr. Macurdy gave of the 
sixty patents ; that the governor had been absent at his farm in Boyle county 
for about ten days during the latter part of August; that owing to that 
fact, the unsigned patents in the register's office had accumulated to sixty; 
he had dated them according to the days the grantees were entitled to them, 
and that they had all been recorded ; that all of them bore date before the 
i st of September, 1846 ; that when he heard that the governor had removed me 
and appointed Mr. Kinkead secretary of State, he took the patents into the 
governor's room to be signed ; that the governor looked at them, and asked 
him if he could not alter the dates ; he replied he could not, because they 
were due at the time they bore date, and because they had been recorded ; 
that the governor, Kinkead, and Mitchell were all in the room; it was then 
concluded that Mr. Kinkead could not attest them, as the patents bore date 
before his appointment ; that when he left the room, the governor, Mr. Kin- 
kead, and Mr. Mitchell were consulting about putting my name to them as 
secretary, by Abram S. Mitchell, my assistant. It was determined, before 
Macurdy left the room, that Kinkead should not attest them. They all 
three knew that they must be attested either by Mr. Kinkead or myself. 
They had decided, before Macurdy left the room, that Kinkead could not 
do it. What then must be done ? Nothing but this. That I was to do it. 
Did not the governor know that Mr. Mitchell was putting my name ? Did 
they (to-wit : the governor and Mitchell) not sit within three feet of each 
other, and when the governor put his name to a patent, it was laid before 
Mr. Mitchell, and he instantly put my name? The governor knew the 
attestation was then being done. He saw Mr. Kinkead was not doing it. 
The conclusion is inevitable, that he knew my deputy was doing it in my 
name. The governor's advice to Mitchell was only colorable, a sham and 
trick, to save appearances. If the advice had been given in good faith, 
Mitchell never would have put my name. The governor had, the same day, 
just before, entered on the executive journal, that I had abandoned the office. 
He had appointed and commissioned George B. Kinkead. The putting my 
name afterward to the patents was placing him in an awkward position. 
The advice, not to put my name, was a trick and artifice, not intended to be 
obeyed, to give color to the transaction, that he might escape the position, 
that he should first proclaim me out of office, and so cause it to be entered 
on the executive journal, and appoint my successor, and then, an hour or 
two afterward, cause my name to be signed to sixty patents. It was a dis- 
ingenuous contrivance to save appearances, entirely beneath the dignity of a 
governor of Kentucky. 

" Mr. Chairman, the governor seems to confound the technical terms, 
as given by Lord Coke, to be found in Bacon's Abridgement, title Office and 
Officers, letter M. 'There are,' says my Lord Coke, 'three causes of for- 
feiture, first, by abuser; secondly, non-user; thirdly, refuser.' Non-user 



THE OWSLEY SPEECH. 



405 



means a neglect of duty as an officer. Their is no such term as abani 
ment. It is non-user, or neglect of duty. There is refusal to aci 
None is alleged, because the fact is the reverse. But, afl 
the legal terms are non-user and abuser. One means non-feasance, the 
other mis-feasance. There is no pretense of mis-feasam e on my part. 

"After an acceptance of an office, if the officer neglects his duty, or <: 
it wrong, he is guilty of misdemeanor in office. 1 [ow is he to be punished for 
that, besides the actions against him by each individual who may be 
injured, either because he won't do his duty as an officer or does it up 
In Great Britain, his office is to be taken from him by scire facias, provided 
he holds his office by letters patent, which is a commission under seal. 
5th volume of Bacon, page 212.) The words of the law are these : ' When- 
ever an officer, who holds his office by patent, commits a forfeiture, he < an 
not regularly be turned out without a scire facias, nor can he be compli 
ousted or discharged without a writ of discharge ; for his right appearing 
record the same must be defeated by matter of as high a nature.' ib's 

Law Dictionary, volume IV, page 440, has the same law. 

" The patent in Great Britain is only repealed by a scire facias, as the law 
says in so many words. In a court of chancery, where the parties are noti- 
fied, and have a full and fair trial, and if the officer's commission is taken 
from him, it is done by a judgment of the court, after every opportunity is 
afforded him to be heard in his defense. 

" In this country, how is non-user and abuser to be tried ? By an impeach- 
ment before the Senate. Sections 2 and 3, article 5, of the Constitution, 
reads in these words : 

" ' Section 2. All impeachments shall be tried by the Senate ; when sit- 
ting for that purpose, the senators shall be upon oath or affirmation \ 
person shall be convicted without the concurrence of two-thirds of the mem- 
bers present. 

" 'Sec. 3. The governor and all civil officers shall be liable to impeach- 
ment for misdemeanor in office; but judgment, in such cases, shall not 
extend further than removal from office, and disqualification to hold an office 
of honor, trust, or profit under this Commonwealth ; but the party convicted 
shall nevertheless be liable and subject to indictment, trial, and punishment 
according to law.' 

" Also see the case of Bartlett against the Franklin County Court. Sne< 

Reports, pages 215, 216, and 217. The case reads in these words : 

•• • 1 >, . •-. 1^02. 

" ' Harry Bartlett, ) 

«««»j. > Upon a Mandamus. 

" 'The Justices of the County Court of Franklin, ) 

'"In January, 1796, Bartlett was commissioned and qualified as a n 

istrate of the county of Franklin; but failed (and, it was alleged, from an 

unsound or deranged mind) to sit as a magistrate for several j 

which time, the Constitution being changed so as to require the two eldest 

magistrates of the county to be recommended by the county court to the 



406 BEN HARDIN. 

governor, for him to appoint one of them sheriff. Bartlett being the eldest 
magistrate, and wishing to fill the office of sheriff, in May, 1802, offered to 
take his seat as magistrate, but was refused that privilege by the county 
court, who caused an order to be entered up, saying that he " shall not be 
admitted to a seat as one of that body." An application was then made to 
the Court of Appeals, at their April term, 1802, for a mandamus ni si, 
against the said county court, which was granted, and on which the county 
court made the following return : 

" ' Franklin County, Set., County Court, September term, 1802. 

" ' This court, having seen and considered a writ of mandamus awarded 
by the Court of Appeals, and to this court directed, to show cause why 
Harry Bartlett, who was formerly appointed a justice of the peace for the 
county aforesaid, shall not be permitted to take a seat as justice of the court 
for the said county, in obedience to the writ aforesaid, hereby return for 
cause : 

" ' First: That it appears to this court, of record, bearing date June term, 
1797, duly entered in the said county court, and remaining unrevoked, 
that the said Harry Bartlett was then taken, deemed, and held to be a man 
of unsound mind, and trustees were appointed to take upon themselves the 
care and management of the estate of the said Bartlett. 

" ' Second : That from the said June term, 1797, until the May term, 1802, 
of this court, the said Harry Bartlett had absented himself from this court, 
and had not, during the period aforesaid, either by himself or any other, 
attempted to take a seat in this court — and 

" 'Third : This court thinks it both illegal and reproachful, that the said 
Harry Bartlett, who appears to them to be incapable of doing any legal 
act in his own business, should participate in the judicial administration of 
the law of the land. 

" ' Ordered, that the foregoing return to the mandamus aforesaid, be 
certified to the Court of Appeals. 

" 'A Copy— Teste, DANIEL WEISIGER, c. F. C* 

" At the October term of the Court of Appeals ensuing, the parties were 
heard by their counsel, and the court took time to consider thereon; and 
on the 27th of October, 1802, delivered in their opinion as follows : 

" 'The causes assigned by the justices in their return, for not admitting 
Harry Bartlett, the applicant, to a seat on the bench of the county court, 
as a member of the said court, appear to be insufficient and unsatisfactory, 
for the following reasons: 

" ' First: It does not appear that the legal steps were pursued in 1797, 
when the applicant was declared to be of unsound mind, and his estate com- 
mitted to the care and management of trustees. But, if the legal steps had 
been pursued, and the applicant regularly pronounced a lunatic by a compe- 
tent jurisdiction, yet, as lunacy is often a malady of short duration, the 
sufferers under it frequently restored to the full enjoyment of their mental fac- 
ulties, it should have appeared (to justify the rejection of the applicant from 
his seat altogether) that he not only was in the year 1797, but still continues 
to be of unsound mind, and incapacitated to discharge the duties of the 
office. 

"'Second: In answer to the second cause assigned, it will be sufficient 
to say, that the law has not limited, in the case of county court justices, 



THE OWSLEY SPEECH. 



■v 7 



what length of absence from duty shall produce a forfeiture of the ofl 
and, therefore, if the applicant has been guilty of such neglect of dut; 
will subject him to removal from office by any of the modes pointed out in 
the Constitution, such mode as may be conceived applicable to the i 
should only be resorted to. 

"'The third cause assigned contains nothing but the opinion ol the jus- 
tices, and, therefore, requires no answer. 

"'Wherefore, it is considered by the Court that a peremptory mandamus 
be awarded the plaintiff.' 

"What is the doctrine now contended for by Governor Owslev and his 
friends? That instead of a scire facias, as in Great Britain, or impea< h- 
ment, as directed in our Constitution, for a misdemeanor in offi< e, the 
ernor and Mr. Mitchell will give the neglect of duty (to-wit: non-use] 
strange and unheard-of name — call it abandonment. That name has such 
a magical influence in it as to authorize them to dispense with notice or trial 
— have a star chamber inquest, not of justice, but injustice, over me — break 
me before I ever heard of it. Then, to bolster up such an enormous ai t of 
injustice and oppression, to basely take my private papers out of a table 
drawer, where I had put them, to draw up a kind of accusation or ini 
ment against me, to be laid before the Senate. 

"According to the mythology of the ancient Grecians, Jupiter put over 
the dead a judge in hell, called Radamanthus. He was so cruel, and 
delighted so much in the torments of the souls of the dead, that he pun- 
ished first, with great severity, and heard the cause afterward. Jupiter said 
that was not his way to do business and administer justice, became dis- 
pleased with his conduct, took his commission from him, on account of his 
injustice, cruelty, and barbarity. I have never heard of but two cases on 
this earth that had any resemblance to the manner of Radamanthus' admin- 
istering justice. One was a country school-master, who taught in Nelson 
county, and to whom Albert G. Botts, now a worthy representative from 
that county, went to school when a boy. The school-master, accordin 
Mr. Botts' account, whipped first and heard the cause afterward ; and if. on 
the trial, he acquitted the poor scholar, he entered, in a memorandum book 
kept for that purpose, a credit for a Avhipping hastily and unjustly inflicted. 
On the next offense given by the scholar, he gave him a credit for the balance 
on his book in his favor ; squared his books, and so the matter ended. The 
other case that I had reference to on this earth, was that of Governor ( >w- 
ley. He imagines I have, as secretary, been guilty of an offense : calls it 
by a new name, ' abandonment; ' punishes me first, without notice or trial, 
and, after the punishment is inflicted, hears my cause. 

"Mr. Chairman, no man is safe if this new doctrine of the governor's, 
called abandonment, is recognized and established. Is there any tune fixed 
as the duration of absence? None. Is there any kind of excuse for the 
absence defined? None. It is all to be at his discretion. For a friend 



408 BEN HARDIN. 

like the attorney-general, may be gone to the city of Washington, for two 
months, pleading causes in the Supreme Court. The governor will construe 
it no abandonment. A commonwealth's attorney may be in the army twelve 
months, with a commission in his pocket, signed by the governor. That is 
no abandonment, because his father is a man of great wealth, an eminent 
lawyer, and the governor's friend. But if he wants to reclaim my office, 
and bestow it on a friend, he will construe three weeks and four days absence 
an abandonment, and take the office away, although the absence may be 
and was on the most urgent business. The governor's prejudices can always 
construe the absence of an officer he does not like into an abandonment. 
Or, if there is an office that a pet wants, he can shorten the time from three 
weeks and four days to two weeks — nay, one week; and, according to his 
doctrine and that advocated by his friends, the Senate nor any other per- 
son can dispute or question the legality of his acts. 

"The governor says abandonment creates a vacancy, and he is the sole 
judge of that. I will ask, Mr. Chairman, what judge, what ministerial offi- 
cer, is safe to adopt that doctrine ? The judges of courts will so adopt the 
same rule of proceeding, when they want to vacate a clerkship, to put one 
of their brothers or sons into office; because, what was usurpation to-day, is 
precedent to-morrow — an established doctrine the next day. This doctrine 
of abandonment is new, extraordinary, and startling. Establish it, and all 
power concentrates, ultimately, in the governor ; and then the governor and 
his Grace, the ' duke,' can well say, as Alexander Selkirk said when on the 
island of Juan Fernandez, 'We are monarchs of all we survey.' 

"The people must resist usurpation and oppression at their first appear- 
ance. It will not do to become familiar with them. They first make their 
appearance in a disguised dress, and like a man attempting to break a horse, 
he speaks kindly at first — strokes the horse's neck — pats him on the back ; 
but let him once get the bridle in his mouth and the saddle on his back, and 
he in that, then the poor horse is a slave for life, and doomed to a life of 
hard labor, great drudgery, and cruel treatment. So with the people and a 
tyrant, as the melancholy history of the world, from Nimrod to the present 
day, proves. There is no way to live and die free, but to be watchful and 
jealous of our liberties. 

" What was the conduct of the people of Great Britain when Charles I. 
attempted to collect ship-money, without an act of Parliament ? They resisted 
and made war upon him— finally dethroned him, and beheaded him. Mr. 
Chairman, we ought, as free men, never forget what John Hampden said on 
that occasion. When one of the ministers of the king said : ' Mr. Hamp- 
den, why do you resist your king for twenty shillings ? ' — that was the amount 
of his tax — he replied : ' I care nothing about the twenty shillings ; it is not 
for that I oppose myself to the power of the Crown. I fight for my liberty. 
To tax me even twenty shillings, without my consent, makes me a slave.' 



THE OWSLKY SPEECH. 4O9 

" The same people made the same kind of resistance to James II.. when 
he attempted to interfere with the Protestant religion of the people. The 
consequence was, that James had to abdicate his throne and fly from his 
kingdom. Louis XVI., of France, paid the forfeit of his head for invading 

the rights of the people ; and his brother, ("harks X.. had in leave his k 
dom for the same conduct toward his people. 

"Our fathers resisted, and maintained with their lives, their fortunes 
and their sacred honors, that resistance to the claim of Great Britain to 
them without their consent, as they had no representation in the Parliament 
of Great Britain. They would not submit to a small duty on tea. The 
ministers of Great Britain had sugared the pill by giving a drawback, or 
bounty, to the exporting merchants, which enabled them to sell to the colonists 
the tea cheaper than before. The disguise was seen through. It was not 
for the amount of the duty they took up arms, but their liberty. For a man 
is a slave if he submits to be taxed without his consent. 

"It is my case, gentlemen, to-day, it may be yours to-morrow, and it 
may be the judges of our courts the next day. Their independence may 
be sapped, and they may be rendered the mere tools and creatures of the 
governor, like they were in Great Britain the instruments of oppression to 
the people, instead of their guardians and protectors, before they were ren- 
dered independent of the king. For, when they hold their offices during 
the good pleasure of the governor, under this new device of abandonment, 
their offices depend upon his will and pleasure, as he can construe what he 
pleases into an abandonment, and then his word is not to be disputed. 
When they are thus dependent on him for the tenure of their office, they 
are dependent on him for the bread they and their families eat. Instead of 
being free and independent men, they will become slaves. All tyrants find 
new names for old things, and under those names oppress the people ami 
rule them with a rod of iron. 

" Mr. Chairman, before I finally leave this subject of neglect of duty in 
an officer, I will refer to a part of the Constitution. It is section fourteen, 
under the head of General Provisions, and which expressly provides for an 
occasional absence of an officer by authorizing a deduction from his salary. 
That goes to disprove this whole doctrine of abandonment of office. It 
goes upon the supposition that the officer still continues in office until 
removed by impeachment. The part of the Constitution 1 have reference 
to reads in these words. 

" ' Section 14. It shall be the duty of the General Assembly to regulate 
by law, in what cases, and what deduction from the salaries of public offi 
shall be made, for neglect of duty in their official capacity.' 

"Mr. Chairman, the governor seems to forget a universal rule in all wars 
between man and man, and nation and nation. After a treaty between 
nations, they never go behind the treaty to look out for a new cause of quar- 



4IO BEN HARDIN. 

rel; so with individuals, if they fall out and make it up, become reconciled, 
and afterward, one chooses to fall out with the other, he has no right to go 
hack behind the time they settled their disputes, difficulties, and quarrels. 
The governor, in his message, did not even regard this rule, for nearly all 
his causes of complaint existed, if they existed at all (which I deny), before 
our compromise and reconciliation, the 3d of January, 1846. That is a 
further confirmation of what I have said — that he is a hard man to please ; 
like a child, you can not keep him in a good humor. 

"The governor, in his message, says: 'Suppose that after Mr. Hardin 
had accepted the office he had refused to qualify to it.' As the case sup- 
posed by the governor did not occur, I am under no obligation to answer 
his supposed or imaginary cases, because I did qualify and acted under the 
commission. The governor seems to confound terms again, like he did in 
using the word ' abandonment' for non-user. It is the qualification that com- 
pletes the acceptance; and without the qualification, the appointee is not 
fully invested with the office by the commission. He has a right to it, pro- 
vided he accepts it ; that acceptance is the qualification, and without the 
acceptance, the vacancy, to fill which the appointee was commissioned, has 
not been filled; and it is just the original vacancy at last. If I make a man 
a deed t© a tract of land, and he will not accept it, nothing passes out of me 
by the deed. If the governor makes a deed to a man, called a commission, 
conveying a franchise or office, and he will not accept it, nothing passes. It 
takes the assent of grantor and grantee to pass the title by deed. It is, cer- 
tainly, not worth while to waste a word more on that supposed case of the 
governor, who, in his charges against me, has drawn so liberally on his 
imagination for his facts. 

"The governor says, has he not a right to judge and decide on a 
vacancy ? Certainly he has. So has the Senate and so have the courts, 
when the question comes fairly before them. But that proves nothing in 
this case. The governor again confounds an actual vacancy with the great 
constitutional question of his right to create a vacancy ; for the real or sup- 
posed delinquency of the officer, the identical thing to be tried by an impeach- 
ment. A vacancy may occur in various ways. By the creation of an office ; 
before it is filled it is a vacancy to be filled, and of which the governor is, 
in the first instance, to judge. The act of God, by the death of an officer, 
creates a vacancy. The officer himself can create a vacancy, constitution- 
ally, three ways, and still be guilty of no offense. One, by resignation ; a 
second way, by removal out of the State ; for when that event occurs, the 
Constitution creates a vacancy. The third way, by the acceptance of an 
incompatible office — that is a resignation by the Constitution, because he can 
hold but one office if they are incompatible ; and by the acceptance of the 
last office, he has declared his election to hold that. That election amounts 
to a resignation of the first office he held. Such is the common law in so 



THE OWSLEY SPEECH. 



41 I 



many words, and such is our statute on that subject. The common law- 
reads in these words: ' A coroner made sheriff, ceases to be 
a parson made a bishop; a judge of C. B. made a judge of B. R.' 
' It was holden, that the acceptance of the office of town clerk, though an 
inferior office, vacated that of jurat.' Our statute on that subject pas 
of December, 1799, to be found in Morehead & Brown's digest, volume II. 
page 1251, and which reads in these words : ' Section 13. When any per- 
son in office, as representative, senator, sheriff, coroner, or any other, shall 
accept any new office or appointment, which by the Constitution shall be 
incompatible with the former office, such former office shall be vacated.' 

"These ways of creating a vacancy do not come within the constitu- 
tional provision of creating a vacancy by the judgment of the Senate, on an 
impeachment; because it is no offense to resign in any of the three ways I 
have pointed out. It is no offense to remove out of the State. It is no 
offense to resign. It is no offense to accept an incompatible offi< e, conse- 
quently there is nothing to try by an impeachment, if the vacancy happens 
in any of these ways. But if the officer has been guilty of a misdeim 
in office, it is the offense that renders the office forfeitable ; and the judg- 
ment of the Senate, when applied to the offense, that actually forfeits it. 
That is the high judicial judgment that the governor now wants to render 
without a trial, although the Constitution declares the officer shall have a 
trial and be confronted with the witnesses face to face. A fair and public 
trial comports with the genius of our government. Secret star chamber 
trials are the rules of action at the palace with the governor and with the 
'duke.' 

"That the rule of action at the palace is secret and unknown to the 
accused is evident and manifest, for I had no notice that the governor did 
undertake, in the first instance, to adjudicate my case. I refer to that part of 
his message which reads in these words: ' In so acting, it is true, I e\er< 
my judgment in the official delinquency of Mr. Hardin.' These words, 
just quoted, prove conclusively that the governor considered he was adjudi- 
cating on my case. 

" In another part of the message of the governor, it reads in these 
words : ' Nor could he, if the peace of the community was disturbed and the 
lives of the citizens endangered by an insurrection or rebellion of the 1 
aggravated character, have attested and legally authenticated any order which 
it might be his duty to issue for their suppression.' I might give a full answer 
to that part of the message by saying I am not bound to reply to .1 sup] 
case, nor am I responsible for a case that never happened. Have there 
been any rebellions or insurrections? None. Then why this pitiful and 
miserable cant about rebellions and insurrections? The answer i> obvious 
just to play the demagogue, to furnish him with a pretext to extend his inci- 
dental powers as governor. 



412 BEN HARDIN. 

" In the days of ancient Rome, after Julius Caesar was assassinated, Mark 
Anthony got hold of his papers, would forge wills and scraps of wills, and go 
out through Rome, read those forgeries as genuine, show Caesar's dead body, 
and the mantle he had on when killed, and attempt to cry, and actually seem 
to weep, like the crocodile, for the sole purpose of grasping the power and 
government of the Roman commonwealth. When, by these tricks, he got 
the power into his hands, he would not scruple to proscribe and put to death 
three or four thousand of the best and noblest citizens at a time. I under- 
stand the hypocritical cant and whining of a demagogue, whether it be Cleon 
of Athens, Mark Anthony of Rome, O'Connell of Ireland, and then, to 
compare small things with great, Judge Owsley, Governor of Kentucky. 

•• Upon that point I have shown to you, gentlemen of the committee, I 
had a deputy, and that he or myself was always in place ; that by the com- 
mon law and our statute I had a right to have a deputy ; that it was the man 
the governor selected for my deputy ; and that he had a right to sign my 
name, whether I was absent or present ; that such had been the custom and 
practice of all the governors and secretaries, including Judge Owsley him- 
self. 

" The message of the governor has these words: 'Though convinced by 
the most reliable evidence, discovered after trial, that a condemned culprit 
was innocent of the crime of which he was convicted, the governor would 
be unable, in the absence of the secretary, to rescue him from death and the 
gallows, by a pardon legally authenticated.' I have the same answer to 
make to that part of the message that I made to his supposed rebellions and 
insurrections. Nothing of the kind has occurred. Did not the governor 
send to the keeper of the penitentiary a pardon, signed by himself and 
attested by Mr. Mitchell for Mr. Kinkead, the 28th of last November, and 
was not the man released from the penitentiary on that pardon? I have 
read you the pardon, gentlemen ; I got it from the clerk of the penitentiary. 
The governor's practice and his demagogueism are at war with each other. 
However, if I may indulge in suppositions, I suppose the governor alludes 
to the case of Dr. Baker. But the governor says an 'innocent culprit.' 
What a solecism in language. The governor seems not to understand the 
meaning and force of words, and hence the difficulty of comprehending, 
from his message, exactly what he does mean and intend, which has greatly 
embarrassed me in knowing how to state his positions, and what is the 
extent of the powers he claims. 

"There are three things plainly discoverable from the message — that he 
hates me, and wants to turn me out of the office of secretary, and put in 
George B. Kinkead; but exactly for what, no man-can precisely tell. It is 
as mysterious a piece of jargon as the responses of the priests and priestesses 
of the Ancient Oracles, when consulted by Croesus on the result of his 
approaching war with Cyrus, the king of the Medes and Persians. 



THE OWSLEY SPEECH. 

"The message, again, has the words: - Besides, the tenure of tl 
of secretary, as prescribed in the Constitution, is peculiar; he is not to I 
and to hold the office absolutely and unconditionally, t < »r and during the 
term for which the governor is elected, but he is to hold the offii e t'>r the 
term, if he shall so long behave himself well.' There is no man in 
country holds an office, whether for life or for years, by any other t< 
than good behavior. I do not exactly comprehend what the governor means 
by the word 'peculiar. ' Does he intend that the words, 'behave him 
well,' have a different signification than good behavior; and that the words, 
'so long as he behaves well,' puts the secretary within the power and 
at the mercy of the governor, and that he can turn him out whenever In- is 
of opinion the secretary does not behave well? Such a conclusion 
does not follow, for the words, 'good behavior' and 'behave well,' me 
identically the same thing. I ask, Mr. Chairman, if the great constitutional 
right of a man to a fair and open trial, accused, accuser, and witnes>e> all 
face to face, is to be taken away from him upon such a ridiculous play on 
words? 'Behave well' and 'good behavior.' 'Good behavior die 

constitutional right to a fair trial; 'behave well' takes it away. What a 
very Daniel of a man — most wise Daniel. 

"The Constitution somewhat resembles the Old and New Testamei 
They were intended by our Creator to save everybody if followed ; and ti 
are so plain and intelligible as to be suited to the capacities of the people. 
So is the Constitution; it is made for all. and in its style and language 
adapted to the understanding of all. No refined meanings are to be adopt' d 
in construing either. The Scriptures and Constitution are not alone made 
for such learned men as your Home Took, the governor, and his Grace, the 
Duke of Buckingham. The governor is indebted to his Grace, I have no 
doubt, for that learned distinction between Ljood behavior and behave well. 
What a dissector of words; how profoundly and prodigiously learned the 
governor is getting in old age, especially when he wants to take from me the 
office of secretary and give it to Mr. Kinkead. 

"In Jacob's Law Dictionary, volume III, page 546. you will see th< 
words: 'In order to maintain both the dignity and independence of the 
judges of the Superior Courts, it is enacted by the statute 13 William III., 
chapter 2, that their commissions shall be made, not as formerlv. du rente 
bene placito, but quamdieu se bene gesserint. and their salaries ascertained and 
established, but that it may be lawful to remove them on the address of both 
Houses of Parliament.' Durcntc bene placito means, during the plea 
the king. Quamdieu se bene gesserint, so long as they shall behave thenw! 
well ; which are the precise words in the tenure of the office of - 
The Constitution, when speaking of the tenure of office, speakir 
officer in the singular, as secretary or sheriff, uses the words, 'sol 
shall behave well ; ' and when speaking of more officers than one, uses the 



414 BEN HARDIN. 

words, ' good behavior.' I refer you to the Constitution, in different parts, to 
prove that position. The governor, himself, uses the words as synonymous ; 
he says, in my commission, 'so long as he shall be of good behavior.' 

" Mr. Chairman, the governor, when speaking of my conduct as secre- 
tary, after enumerating a number of frivolous complaints against me, says, 
that ' it is nothing more or less than an effort to obtain the emoluments 
of an office, the duties of which he would not perform.' I have already 
stated to you, gentlemen, as near as I could, about what portion of my time 
I was in Frankfort, the courts I abandoned my practice in entirely or par- 
tially, the sacrifices I made in my professional business. Did not Governor 
Owsley know, and did he not agree, that I was to continue my practice as a 
lawyer when secretary? Did he not continue his practice as a lawyer when 
secretary ? Did I lose any time at the seat of government except when I 
was at court? The governor does not believe it himself. Then why insin- 
uate that I held the office to draw the salary without rendering any equiva- 
lent for it in services ? I can make more in two months, out of my profession, 
than the salary amounts to in a year. 

"I took it in good faith and in the integrity of my heart, to assist the 
governor in his administration ; but, shortly after I took it, I discovered that 
the governor and his minions wanted to drive me out of it by ill treatment. 
After that, I only continued in the office to select a fit time when I could 
leave it and seem to do it of my own accord. I had rather than five thou- 
sand dollars I never had accepted the office ; it would have saved me many 
a bitter pang. I will refer to the lawyers who have practiced with me, for 
thirty years, if they know any man in Kentucky, who, as a lawyer, takes as 
moderate fees as I do for the professional skill and labor bestowed ; and in 
my whole life, private and professional, if they know of any man living less 
of a screw-driver. 

" The governor has heard, I have no doubt, that when Jeremiah Boyle, 
who married his granddaughter, got unfortunately into some difficulties 
with a gentleman by the name of Greenwood, in Danville, and killed him, 
that I was twice sent for, once to Bardstown and once to Springfield, and a 
fee of five hundred dollars offered me to prosecute him ; that I refused, and 
each time gave the same answer, that I would not, in such a case, prosecute 
a son of one of the old judges of the Court of Appeals, and who had mar- 
ried the granddaughter of another, for any sum whatever. I will ask the 
governor if it seemed like avarice, when I quit all my business, private and 
professional, for nine months, and rode over fifty counties to canvass for his 
election, and nearly all the time at my own expense ? If that be avarice, it 
is a kind of avarice the governor never knew or felt. 

" Before the governor maliciously insinuates that charge, he had better 
look a little to his own moneyed matters. During the struggle and contest 
between the old court and new, the old court was prevented from doing 



THE OWSLEY SPEECH. 



us 



business, as a court, for nearly eighteen months; nevertheless, they 
their pay, amounting to about twenty-two hundred and fifty doll n. 

Governor Owsley cashed his salary to a certain:), and yel he rendered no 
service. The governor had better look a little to the enormous sums 
public money he has expended for his own convenience, upon the p 
and for his family, without being immediately connected with the improvi 
ments of the palace, right in the teeth of the Constitution, as no appropi 
tion for a large part of those disbursements was made b) law.* 

" Mr. Chairman, I have intimated that I intended to give some a< i ount 
of the administration of Governor Owsley, so far, at least, as 1 have been 
concerned with it, to show the true position I occupied in that administration. 

" When Governor Owsley was elected governor, my heart was filled with 
joy and gladness. I concluded that if it met his views, I would an | 
secretary, and move to Frankfort, for the sole and only purpose of aiding 
and assisting him in managing the executive department of the government. 
Money was not my object. I knew I was making great pecuniary sacri- 
fices, and leaving one of the most comfortable and handsome residences in 
Kentucky. My object was to make fame for him and myself both, by the 
manner in which we would conjointly carry on the government. After the 
presidential election, in 1844, I was here for several weeks. Mr. Mitchell 
was not here. Mr. Tilford acted for him, as my assistant. All was har- 
mony between the governor and myself. We, in a few days, settled down 
upon several general principles in conducting the government ; one \\ 
never to pardon a man when there was nothing alleged for his pardon than 
this, that the court and jury had erred in deciding the law and facts of the 
case; because for the governor to interfere, under such circumstan< :es, w 
to make himself nothing more or less than an appellate court, for the trial 
of criminal cases. The Constitution, in giving the pardoning power to the 
executive, only intended he should exercise that when the convicted 
man either had not a fair trial, or had some claims to the mercy of the gov- 
ernor that could not, according to the rules of law, form any part of his 
defense. This principle was, in November. 1S44. applied to a man who 
was sent from Washington county, who had made an attempt to steal Jud 
Booker's negroes and horses, but had not, as was contended, gone t.ir 
enough, in committing the act, to amount to a felony. 

"We also turned our attention to the growing and corrupt | 
buying and selling offices. I informed him that I had defended two nun in 
the Hardin Circuit Court for buying and selling the office of sheriff; I 
upon examining minutely the statutes in Great Britain and Kentucky I 
did not reach and embrace the evil that now existed: that the practice 1 
was not to buy or sell an office, but to buy or sell a resignation, and tl 
make a vacancy : which, in morals and sound policy, was as corrupt 
buy or sell an office, for it was but that at l ast, considering how the appoint 

*See note at the end of the speech. 



41 6 BEN HARDIN. 

ing power fulfilled the corrupt contract made by the parties ; that such con- 
duct was prejudicial to the public interest and the administration of the laws. 
We then agreed to put the practice down, as far as we could, of dealing in 
offices, or aiding or assisting in procuring vacancies; that whenever we sus- 
pected a man, who was an applicant for office, to have been guilty of an 
offense of that kind, to refuse him any appointment, unless he would make 
an oath that he neither directly or indirectly had dealt in offices, or in selling 
or buying a resignation or vacancy. 

"The first man who applied to be appointed sheriff, was from the county 
of Cumberland, I believe. He would not take the oath ; the appointment 
was refused. The next was a man from the north side of the Kentucky 
river, but the name of the county I forget. He would not take the oath ; 
he shared the same fate. The next was some person from Jefferson, who was 
about to purchase the resignation of James Harrison, who was sheriff, at the 
price of two thousand dollars, if he could get the appointment. He refused 
to take the oath ; the appointment was refused him. The next was from the 
county of Butler, who wanted the appointment of sheriff. We suspected 
that he had purchased the resignation of the acting sheriff, and required of him 
to take the oath ; he said he would. I drew it in presence of the governor, 
gave it to the applicant ; he swore to it before Wingate, and returned it to 
me. I filed it away in the secretary's office, and by the direction of the gov- 
ernor, the commission was prepared and executed immediately. Several 
other cases occurred during the winter of 1844 and part of the year 1845. 

" When the governor was preparing his message in 1844, I urged him to 
open his administration by a bold and marked line of policy, on which I 
was building my hopes of giving the administration reputation ; to recom- 
mend retrenchment in several particulars which I pointed out to him ; and, 
also, to recommend new taxes, to fall upon the goods, wares, and merchan- 
dise consumed in the country, and upon the professions of men, and the sal- 
aries of officers ; and by this means fifty thousand dollars could be added to 
the sinking fund, so that the commissioners could redeem the State debt in 
thirty years ; to recommend the extension of the lock and dam system on the 
Kentucky river to Boonesborough, and the turnpike road to be extended 
from Crab Orchard to Cumberland Gap ; the State's dividends on the locks 
and dams already built to aid in making the new locks and dams, and the 
State's dividends on the turnpike road from Louisville to Crab Orchard ; to 
extend that turnpike to Cumberland Gap ; that the works would progress 
slowly, but certainly, to their final finish and completion. To these suggestions 
of mine the governor remarked, that he would not put those recommenda- 
tions I suggested in his first message, but would reflect on them until his 
next annual message. 

" The next subject of political importance we conversed about was the 
nomination of Judge McKee to the Senate, as judge for the upper circuit, 



THE OWSLEY SPEECH. 



■P7 



which adjoins the Virginia State-line. Judge McKee had been commis- 
sioned for this circuit, the spring or summer before. The commission 
pro tempore until the end of the next session of the ( General Assembly. Mr. 
McKee had accepted the commission given to him by Governor Letcher, 
and had been presiding as judge in the circuit for some months. !!<• had 
conducted himself with great dignity and propriety, as judge, and his i 
attainments qualified him well for the office. Moreover, nature had i 
exceedingly kind to him, in giving him a fine understanding, a clear and 
vigorous capacity, and not a kind of mind to be caught by the techni< alities 
of the law. That kind of mind is indispensable for a judge. All the mem- 
bers of the Legislature from that circuit spoke in his [.raise, and recom- 
mended him, in the highest terms, to the governor. I urged th rnor 
to make the nomination to the Senate. He did not say whether he would 
or not, but delayed it. I pressed it again and again ; told him that it had 
been the invariable practice of the governors in Kentucky, when an offi< er 
had been appointed during the recess, and had conducted himself well, to 
nominate him to the Senate, and if he did not do it, the people would < ome 
to one of two conclusions, either that he had not treated him well, or that 
McKee had behaved badly in office, and the first conclusion they must come 
to, as every person from that region of country spoke in the highest terms 
of him as judge. The governor still put off the nomination, and finally 
remarked to me that ex-Governor Letcher was making himself too busy about 
it. I replied it was no objection to McKee's appointment: besides, it was 
commendable in Mr. Letcher, and more a matter of praise than (ensure tor 
ex-Governor Letcher to take some interest in the welfare of Mr. McKee. as he 
was his nephew. He then used some expression or remark, but exactly the 
words I do not recollect, that he did not like George Robertson and I 
ernor Letcher. McKee is the sister's son of Robertson. I then repeated 
to him, as an anecdote, a conversation between Bonaparte and one of his 
confidential friends, shortly after he was made First Consul. His friend 
asked him: 'What are you going to do with Bernadotte?' Bonaparte 
replied: 'Give him employment! Such talents as his must not go unem- 
ployed. Why did you ask the question ? ' His friend remarked : ' B 
I knew you and Bernadotte were not friendly when in the army.' Bona- 
parte instantly answered, with apparent impatience: 'The First Consul of 
France never remembered the quarrels of General Bonaparte.' ' S d I, 
' Governor Oswley must never recollect the quarrels of William < hvslev. \^ 
governor, you act for the people, and not yourself I pointed out to him. 
also, the poli-ical disasters that would happen to the Whig party if he nomi- 
nated John White to be judge, instead of McKee : that the inn - I the 
Whigs demanded the services of White in Congress. All my arguments and 
entreaties were of no avail. I soon saw what was the matter: personal 
feelings in the governor. Mitchell had got back from West Tennessee ; his 

27 



418 BEX HARDIN. 

tracks, and Goodloe's, were plainly visible in the whole affair. I was 
taught a lesson — that I had no power. I have regretted a thousand times, 
since, that I had not then resigned my office of secretary ; and I would have 
escaped all the troubles, vexations, and harassments I have experienced ever 
since ; and this cup of bitterness that I am compelled- to drain to the last 
dregs would have passed from me. The misfortunes and calamities that 
have befallen the Whigs, in that district, where they had three thousand 
majority. I need not repeat. The tale is melancholy ; a Democrat represents 
it now in Congress. Surely, ' the distinguished Whig ' deserves the thanks 
of the Democratic party for their unexpected and unlooked-for success. 

' ' The governor, after that, withdrew all official interchange of senti- 
ments with me ; his confidence seemed to be solely placed in Mr. Mitchell. 
He has been, from that day to this, his oracle, into whose bosom he has 
poured his most secret thoughts. Papers of recommendation for appoint- 
ment to office were sent to me, as secretary, to be laid before the governor ; 
he would soon hear I had them, through Mitchell, I suspect. Then he would 
take especial pains to make the appointment without my knowing it, or get- 
ting a chance to lay the papers before him. Washington Ewing shared that 
fate ; and so did Sherrod Williams, and likewise many others until at last it 
was generally known in Frankfort that it was fatal to an applicant's claim for 
an appointment, to be seen talking to me ; and their friends in Frankfort 
would caution them against it. Very shortly after the first session of the 
Legislature, I became satisfied that the governor's administration was to be 
marked by no statesman-like system of policy ; that it would signalize itself 
by nothing but a miserable hunt after offices for a few men. 

"The governor had not been long in power until he got for Mr. Mitchell 
the clerkship to the commissioners of the sinking fund, in place of Mr. Har- 
lan, at a salary of five hundred dollars a year. The governor forced Mr. 
Mitchell upon me at a salary of six hundred and sixty-six dollars ; a year's 
perquisites of office worth about two hundred dollars — making thirteen hun- 
dred and sixty-six dollars. He would not agree he should be turned out of 
either office, and yet has the effrontery to complain that the business of the 
secretary's office had got behind. 

" Some time in May, 1845, Benjamin Selby, the First Auditor died, leaving 
a large and helpless family ; a son of age who had done all of the business 
in the office for years, exceedingly well qualified for the place — the salary 
would have enabled him to aid greatly in supporting his mother's family ; 
and, moreover, he was strongly recommended for the office. What did the 
governor do ? He turned a deaf ear to all young Selby's recommendations ; 
a deaf ear to the sufferings of a helpless widow and children, and said to 
them, go out upon the world and starve. Before the First Auditor was 
buried, or about the time, a commission issued for Harry I. Bodley, a man of 
fortune, and formerly the clerk of the Fayette Circuit Court, and who had sold 



THE OWSLEY SPEECH. 



419 



it a few days before for about thirteen thousand five hundred dollars, of which 
fact the governor was fully apprised. That appointment formed an ex 
tion to the rule that he had made when he first came into office — that do 

man who had bought or sold an office should have an appointment ; 
what do you, gentlemen of the committee, suppose formed the basis of the 
exception? Nothing but this — that the governor's son. Boyle Owsley, 
married Elizabeth Bodley, the sister of Harry I. Bodlev. 

" I determined, in June or July, 1845, t0 resign the office of se< retar) 
soon as I could do it without appearing to be driven out by ill-treatment, and 
fixed on November, 1845, when I would go to Jackson. Mississippi, to attend 
the federal court. This intention I had communicated to several of my 
friends, and then gave up my law business in Frankfort and the adjacent 
counties, which I had undertaken, except a few cases in the Court of 
Appeals. Before the time arrived for me to resign, I think it was at the 
Meade Chancery Court, in August, 1845, I g ot a l etter from a gentleman 
living in Frankfort, of high standing, to whom I had communii ated my 
intention of resigning, that the governor threatened to impeach me or 
remove me; that it would look like a confession of judgment for me to 
resign in November. I determined not to resign then. In December I 
learned that the governor had drawn up his charges against me. and that he 
got the opinion of the attorney-general that he had a right to remove me 
from the office of secretary of State. The attorney-general had the vanity 
to boast of giving his opinion to the governor in writing, which is somewhat 
remarkable, considering the attorney-general's retiring modesty. I was in 
no wise alarmed by the opinion of the attorney-general, notwithstanding he 
is the hishest law officer known to our Constitution and law. I believed I 
was right, and that was enough. I feared not the result. I dreaded not the 
whole force the governor could array against me. I knew some attorneys- 
general, and had heard of others. When the Csesars of Rome wanted to 
spill the best and noblest blood of the city, the attorney-general was n 
to support the charge against the innocent victim. Tiberius. Caligula, Nero, 
and Domitian had their willing and servile attorneys-general. So hai 
Elizabeth, when she wanted to put Mary. Queen of Scots, to death. So had 
James I., when he wanted to murder Sir Walter Raleigh. So had Robes 
pierre, when the best blood of France was to be shed; when neither 
sex, nor condition, however innocent and illustrious, was any protection. 
the descent be not too rapid and great, Governor Owsley has his willing 
attorney-general. The principle of all their actions is contained in thes 
words, from the book of Isaiah: ' The ox he knoweth his owner, and the 
ass his master's crib.' 

" Mr. Chairman, of the reconciliation which took place the 3d of Januai 
1846, between the governor and myself you have heard: I need not repe 
it. The insults that were offered to me last winter, afterward. I have already 



420 



BEN HARDIN. 



stated. I was restless and miserable. I intended to resign at the end of the 
session of the Legislature. George Robertson, a few days before the end of 
the session, took dinner at Colonel Davidson's, where I boarded, and when 
at table I casually remarked I intended to resign at the end of the session. 
He replied, do you know that there is a rumor among the governor's friends 
that you were to resign at the end of the session upon condition that the 
governor should not proceed with his contemplated motion against you in 
the Senate ? I answered, I did not; that there was no such agreement; that 
I had rather die than to have made such an arrangement. I further remarked, 
I will hold on to the office until I can resign at a time when I can leave the 
office without its having the appearance that I bought my peace. 

" In July I learned that my son had failed in getting into the military 
family of General Taylor, as was his original intention when he left Ken- 
tucky; that he was in the army as a volunteer, destitute of money, and bare 
of clothes, without receiving any pay. I determined to go to him in Octo- 
ber, and then resign. I commenced preparing to leave for Mexico as early 
as last August. Before October arrived, the governor commenced his war 
with me, and how he has conducted it, you gentlemen, know. Instead of 
being in Mexico, as I expected, here I am now — the great State criminal of 
the day. The boys, as I pass along the streets, look at me with perfect aston- 
ishment, that Governor Owsley and Mr. Mitchell permit me to go at large. 

" The governor complains that I was not enough at Frankfort to give him 
the needful aid and assistance in administering the government. Was there 
ever such insincerity ? Does he not know he would not consult with me, 
and frequently locked his room door on me? 

"About the 20th of May last, I got here. I met the governor and Thomas 
B. Stevenson seven miles from this place, on their way to Louisville. When 
I got to Frankfort I called on my assistant, Mr. Mitchell, to know the situa- 
tion of the volunteers, and in what situation the matter stood, as the governor 
had gone to Louisville, and would not be back for some days. I wanted to 
know how to act in the matter. The Louisville Legion had been received, 
and was about to start for the seat of war. The report made me, in writing, 
is in these words : 

"'Ten cavalry companies, ten infantry companies; reported full : one 
cavalry company, two infantry companies ; reported but not full : three cav- 
alry companies, seven infantry companies.' 

" I accordingly received only such companies as were full, ninety-three 
made the number required by the order of the War Department, including 
officers, non-commissioned officers, musicians, and privates. The companies 
were tendering their services Friday night, Saturday, and Saturday night ; 
and Sunday there was a great rush to get companies received. Whenever a 
company was full and the roll showed their names were genuine, I issued a 
certificate stating the company was received, and its name and number. I 



THE OWSLEY SPEECH. 

rejected all companies offered that were not full. To rei eive a compam 
full, the governor could select his own officers, and the) could go out and 
beat up for volunteers. But to receive no company that was nut full, it 
companies at a distance a chance to get in, and gave the men a i ham 
elect their own officers. I acted on the above principles, and no other. I 
also contended the governor had, by the Constitution, the right to < ommis* 
sion all the officers, from a general down; that he ought never to surrender 
the right ; and that Butler and Combs should be the generals. 

" Before the governor got back from Louisville, a letter signed ' Volun- 
teers, 5 was brought from the post-office by the messenger of tin- set retards 
office, and laid on my table in the secretary's office. I read it, handed u 
over to Mr. Lindsay, to see if he could find out the author: he returned 
after a short time and said he could not find out. He gave it to Adjutant 
Todd, of the volunteers, and he tried and could not find out the author. He- 
gave the letter to Captain Chambers, who, I think, attended in the post-ofl 
'He came to me with the letter, and said it came from the secretary's office, 
and that Mr. Mitchell wrote it. I looked again at the handwriting, and 
replied that it was not the handwriting of Mr. Mitchell, but that I thought 
it was William Anderson's handwriting. He is the grandson of the g< >\ erni >r 
and lived at his house. I showed the letter to several who are acquainted 
with William Anderson's handwriting. They all affirm it is his, and I can 
prove it is his. Here is the letter, gentlemen : 

"'Frankfort, May 23, 1S46. 

" ' Ben Hardin : When your country needs your services you are never 
at your post. Now everything is done you come slipping in here to have 
some mercenary scoundrel, like yourself, put over us to command us in the 
Texas war. We intend to submit to no such thing, and give you distinct 
notice that unless you leave here we will scalp you before we start for the 
Rio Grande. 

" ' We want no traders put over us, to disgrace ami sell us to our coun- 
try's enemies, and make us perish in the mines of Mexico. 

'•'VOLUNTEERS.' 

" Although the governor was not cognizant of the letter, as he was not 
in Frankfort, yet those who are concerned in it knew what would suit his 
palate, and I hold him as much responsible as if he were the author. This 
letter proves that the governor and his little party did not want to see me at 
Frankfort. 

" There is another charge against me, made by the party who are in the 
confidence of the governor. That charge is too contemptible to be not:' 
did it not show the spirit of persecution that hunts me down. The ch 
is that I am incompetent to do the business of the office. So far as the ch 
may be directed against my capacity, I have no answer to make. If my 
being before the people for forty years can not disprove that charge, I can 
not do it by anything I can say. If the governor and his friends allude to 



422 



BEN HARDIN. 



my being crippled in my right arm, I admit the fact. The governor and 
Senate well knew it when I was appointed, for no man can see me one 
moment, face to face, and not see that I am crippled. Yet, I can write, 
even crippled as I am, as good a hand as the governor, and can spell what 
I write, and write our language correctly. 

"You will remember, gentlemen of the committee, that when the com- 
mittee overruled the objections of Mr. Kinkead, that the Senate could not 
go behind the qualifications of the nominee, and inquire whether there was 
a vacancy or not; he said he had nothing further to do with the trial or 
investigation. After I had finished the examination of the witnesses, on my 
part, one of the members of this honorable committee called Mr. Mitchell 
as a witness. That call, as I understand, was at the instance and suggestion 
of Mr. Kinkead, privately made, and came, originally, either from the gov- 
ernor or Mr. Mitchell, I have no doubt. Had they any other witness 
except Mr. Mitchell ? None that I know of. Why was this plan adopted 
by Mr. Kinkead, Mr. Mitchell, and the governor? No reason for it but 
one, and that is obvious, and can not be misunderstood. If Mr. Kinkead 
had called Mr. Mitchell, then I intended to object to his competency. He 
has been dismissed as my deputy or assistant secretary. He is the assistant 
of Mr. Kinkead. If Mr. Kinkead holds the office, he receives annually 
six hundred and sixty-six dollars, paid him by the government, and about 
two hundred dollars, the fees of the office. If in this contest Mr. Kinkead 
loses the office, then Mr. Mitchell loses the appointment of assistant secre- 
tary, and about eight hundred and sixty-six dollars a year. His interest is 
clear, direct, and manifest in the result of the question now before the Sen- 
ate. In the whole plan to get in the testimony of Mr. Mitchell, I can see 
Governor Owsley in it from beginning to end. It is the scheme of an old 
hackneyed lawyer well versed in pleas of abatement, and the trickeries of 
his profession. No man is better skilled in accomplishing that indirectly 
which he can not do directly. Hence, the necessity, gentlemen, as Mr. 
Mitchell is an interested witness, of receiving his evidence with great cau- 
tion. In a great number of his statements, I do not recollect the facts as 
he does. 

" I have now, gentlemen of the committee, finished the first branch of 
the question I intended and proposed to investigate, that is, the governor's 
charges against me. I have respectfully submitted my views of the law 
and facts upon each specification, as contained and exhibited in the message 
of the governor. I fear that I have trespassed upon your time, and drawn 
too heavily on your patience, gentlemen, already. If I have, I beg pardon. 
My character and reputation have been wantonly assailed. They are dear 
to me, and, in justice to my own feelings, I could not have said less. 

"The last, or main branch of the question, which I propose to discuss, 
is the power of the governor to remove me without any cause whatever, 



THE OWSLEY SPEECH. 



4^3 



except his own mere will and pleasure; or, to speak with more truth than 
propriety, his caprice and passion. A great portion of what I have s.ud, 
when answering the governor's charges and specifications in his message, 
will appropriately apply to either branch of the main question I intended to 
investigate in the outset of my address. I will not repeal it new, and only 
say those things I could not well introduce into the previous part of my 
speech. 

" I will read to you, Mr. Chairman, that part of the Constitution whi< h 
creates the office of secretary of State. It is to be found in the Constitution, 
article three, section twenty-four, and reads in these words : 

" 'Section 24. A secretary shall be appointed and commisioned during 
the term for which the governor shall have been elected, if he shall so long 
behave himself well. He shall keep a fair register, and attest all the offi< ial 
acts and proceedings of the governor, and shall, when required, lay the 
same and all papers, minutes, and vouchers relative thereto, before either 
house of the General Assembly, and shall perform such other duties as may 
be enjoined him by law.' 

"The secretary has, besides the duties pointed out to him in the section 
just read, a number of other duties appertaining to his office. (See the fifth 
section of the Schedule of the Constitution.) In that section the votes for 
governor and lieutenant-governor are to be returned to the secretary, and, 
in case of a tie, he is, as secretary, to do a number of other official acts, 
which I will not enumerate. The section I allude to reads in these words : 

" ' Section 5. In order that no inconvenience may arise from the change 
made by this Constitution, in the time of holding the general election, it is 
hereby ordained that the first election for governor, lieutenant-governor, and 
members of the General Assembly shall commence on the first Monday in 
May, in the year eighteen hundred. The persons then elected shall < :on- 
tinue in office during their several terms of service prescribed by this Con- 
stitution, and until the next general election, which shall be held after their 
said terms shall have respectively expired. The returns for the said firsl 
election of governor and lieutenant governor shall be made to the secretary 
within fifteen days from the day of election, who shall, as soon as may be, 
examine and count the same in the presence of at least two judges of the 
Court of Appeals, or district courts, and shall declare who are the persons 
thereby duly elected, and give them official notice of their election : and if 
any persons shall be equal and highest on the poll, the said judges and 
retary shall determine the election by lot.' 

"I will call your attention, Mr. Chairman, to the twenty-second so tion 

of the third article of the Constitution, for further duties to be performed by 
the secretary. It reads in these words : 

" ' Section 22. If the lieutenant-governor shall be called upon to admin- 
ister the government, and shall, while in such administration, resign, di 
be absent from the State, during the recess of the General Assembly, 1 
shall be the duty of the secretary, for the time being, to convene the Sen- 
ate, for the purpose of choosing a speaker.' 



424 BEN HARDIN. 

" I will invite your attention to the fifteenth section of the sixth article of 
the Constitution. There you will see other duties to be performed by the 
secretary ; which section reads in these words : 

" 'Section 15. Returns for all elections for governor, lieutenant-gover- 
nor, and members of the General Assembly, shall be made to the secretary 
for the time being.' 

" Again, the ninth article of the Constitution, which prescribes the mode 
of calling a convention — there the secretary has duties to perform ; which 
article reads in these words : 

"'When experience shall point out the necessity of amending this Con- 
stitution, and when a majority of all the members elected to each house of 
the General Assembly shall, within the first twenty days of their stated 
annual session, concur in passing a law for taking the sense of the good 
people of this Commonwealth, as to the necessity and expediency of calling 
a convention, it shall be the duty of the several sheriffs and others, returning 
officers at the next general election, which shall be held for representatives, 
after the passage of such law, to open a poll for, and make a return to the 
the secretary, for the time being, of the names of all those entitled to vote 
for representatives who have voted for calling a convention ; and if there- 
upon it shall appear that a majority of all the citizens of this State, entitled 
to vote for representatives, have voted for a convention, the General Assem- 
bly shall direct that a similar poll shall be opened, and taken for the next 
year ; and if, thereupon, it shall appear that a majority of all the citizens of 
this State entitled to vote for representatives, have voted for a convention, 
the General Assembly shall, at their next session, call a convention, to con- 
sist of as many members as there shall be in the House of Representatives, 
and no more ; to be chosen in the same manner and proportion, at the same 
places, and at the same time, that representatives are, by citizens, entitled to 
vote for representatives ; and to meet within three months after the said 
election, for the purpose of re-adopting, amending, or changing this Consti- 
tution. But if it shall appear by the votes of either year, as aforesaid, that 
a majority of all the citizens entitled to vote for representatives did not vote 
for a convention, a convention shall not be called.' 

"The twenty-fourth section of article three, which I have read to you, 
Mr. Chairman, contains these words : ' And shall perform such other 
duties as may be enjoined him by law.' The duties which have, by various 
acts of Assembly, been enjoined on the secretary, I will not trouble you to 
read. They are numerous and diversified. I could not read all the acts 
passed at different times, prescribing the duties to be performed by the sec- 
retary in a day. 

"The governor says I am his secretary. I affirm I am the secretary of 
the State. I am the people's secretary. I am, emphatically, the Constitu- 
tion's secretary. My office is created by the Constitution ; my duties are 
prescribed by the Constitution, and laws made in pursuance thereof, and to 
the people alone am I responsible, in the manner pointed out by the laws 
and Constitution. If I were the governor's secretary, then would my office 



THE OWSLEY SPEECH. 425 

expire when he either died, resigned, or was removed by impeachment . lor 
in these ways his office can be vacated. How can I be the- governoi 
tary and have so many other duties to perform independent of the g< <\ ei i 
Is the governor responsible for my acts as secretary? I answer, he is not, 
in any way whatever. Does the secretary go out of office, if the goveri 
office becomes vacant before the term for which he was elected exp 
Certainly not. Did not Lewis Sanders, who was appointed by Governor 
Breathitt, continue in office under Lieutenant-Governor Morehead, until he, 
Sanders, resigned? Did not Mr. Bullock, who was appointed by Governor 
Clarke, continue in office after Governor Clarke died, under Lieutenant- 
Governor Wickliffe, without a new appointment? He did. These two 
cases go conclusively to prove that the secretary is the secretary of the < 
stitution, for the term of four years, if he so long behaves well, without refer 
ence to the governor at all. 

"The secretary 'is to keep a fair register, and attest all the official acts 
of the governor; and shall, when required, lay the same and all papers, 
minutes, and vouchers relative thereto, before either branch of the General 
Assembly.' Those very duties, required of the secretary, if there were noth- 
ing else, show that he is independent of the governor. Is he only to register 
what the governor tells him to do? No; but he is to keep a fair register. 
Keep it as the governor directs? Surely not. But to keep it as the fa< ts 
are, according to his own judgment, as a sworn officer under the Constitu- 
tion. Suppose the governor was acting badly, in his official capacity, and 
from the fear and dread of an impeachment, was to direct the secretary to 
make false entries in the executive journal, what would be the duty of the 
secretary then ? Would it be to write what the governor told him. or to do 
what the Constitution, the law, and his oath, required of him — that is • to 
keep a fair register?' Every man will admit, at once, that he is bound by 
his oath, notwithstanding the governor may direct to the contrary, to do as 
the Constitution requires — that is, 'to keep a fair register ? ' When you 
arrive at that admission or conclusion, that is an end to the question— that 
he is not the governor's secretary, but the secretary of the Constitution. 
How can you expect from him a faithful discharge of his duty pra< tically. if 
the performance of that is opposed to the governor's will, when for that very 
act he can and will turn him out? If you give the governor the pow 
remove the secretary at his will and pleasure, what security have the pi 
that he will perform those duties enjoined on him by the Constitution 
laws, and, above all things, ' keep a fair register ? ' 

"If the secretary is prosecuted for a high misdemeanor in office, by an 
impeachment, and it is clearly proved, is it any defense for him to s 
governor told him to do it ? We know that it would be no defense. Y 
ought to be a good defense, if he be the governor's secretary, and bound t 
do his bidding. Will you adopt, gentlemen of the committee, such a con- 



426 BEN HARDIN. 

struction of the Constitution as to make a high constitutional officer of this 
government the mere tool and dependent creature of the governor ; or, will 
you have him an independent, free man, alone responsible to his God and 
his country for his official acts ? To his God, because he takes an oath to 
do his duty faithfully; and to his country, through his official responsibili- 
ties. No, gentlemen, leave him free; let him feel the pride of an American 
citizen, and not be compelled to bow and cringe, as his Excellency, or his 
Majesty, Governor Owsley, wrapped up in the folds of his fine cloak, may 
proudly stalk by him, like Solomon, arrayed in all his glory. 

"If the governor has the power to remove the secretary, he must find 
that power somewhere else than in the bold assertions, that he is his secre- 
tary, and not the secretary of the Constitution and the people. Such an 
extravagant pretension can not be allowed — it can not be tolerated one 
moment. The governor claims the power to remove the secretary, because 
he can fill up the vacancies. I have already commented on that part of the 
Constitution, and his claim under it. 

"The governor asserts his power to remove the secretary under this part 
of the Constitution : ' He (to-wit : the governor) shall take care the laws 
be faithfully executed.' What is the fair interpretation of that clause in the 
Constitution ? It is this, he is to furnish the military power to execute the 
laws, if the ordinary officers of government can not enforce them ; he is to 
see that criminals shall not escape, and when they fly from justice, offer 
rewards for their apprehension, and demand them of the governor of sister 
States, if they have fled there ; he is, as governor, to exercise a general 
superintendency and supervision over the whole administration of the gov- 
ernment, and give notice to the Legislature, from time to time, if there be 
any defect in the laws, or in the administration of the laws. 

"If this power, under the section I have read, to see the laws faithfully 
executed, goes beyond the rules and limits I have given to it, I ask, how 
far ? Where is the stopping place? If the governor can turn out the secre- 
tary at his will and pleasure, under the power to see the laws faithfully exe- 
cuted, why not every other officer in the government? Why not say to our 
judges of the circuit courts and the Court of Appeals, you, gentlemen, do not 
decide according to my judgment ? I will tell you what kind of a judgment 
to enter, and if you do not do it. I will remove you, for I must see the laws 
faithfully executed. The governor can hold the same language as to clerks, 
sheriffs, and all executive officers. No officer in this government can plead 
and say, turn us out in the manner prescribed in the Constitution. In vain 
the judges and justices will say, we can alone be turned out by impeach- 
ment, or an address of two-thirds of each branch of the Legislature, where 
we can have a fair trial. The executive officers can make the same appeal 
to the Constitution. All these appeals avail nothing. The governor can 
make the same answer to them he can to the secretary. I am to see the 



THE OWSLEY SPEECH. 



4-7 



laws faithfully executed, and under that power given me, I have a ri^ht, 
an incident to that power, to turn you out ; and I am alone the judge 
whether you execute the laws faithfully or not. They may all, with one 
voice, appeal, again and again, for a fair constitutional trial, of being heard, 
and have the witnesses who swear against them face to face — it will amount 
to nothing, whenever the governor's claim of removal from office is tolerated 
to the extent he contends for — then is there but one power in the State. All 
the departments and offices concentrate in the governor alone. Such tyranny 
and despotism must be put down. These high claims of the governor are 
not imaginary, gentlemen. They are partially put into operation against me. 
"The governor claims the power to remove me, because he nominated 
me to the Senate, and signed my commission. That is a duty he was 
required to perform by the Constitution. If the powerof appointment gave 
the power of removal, as a consequence then, the power would not be in 
the governor alone, but in the Senate and governor. 

"The Constitution of the United States and Kentucky never contem- 
plated that kind of responsibility in the officers of their respective govern- 
ments. According to that rule, the Electoral College can meet again in 
their respective States and remove Mr. Polk. The several Legislatures of 
the States can revoke and annul the election of the senators of the United 
States, and the constituents of the members of the House of Representa- 
tives can nullify their elections and call them home. There is no such 
responsibility known to the Constitution of the United States. The presi- 
dent is responsible to the people by an impeachment, and in no other way. 
The senators are responsible to the Senate by the power of expulsion. In 
the same way the representatives are responsible to the House of Represent- 
atives. Take our state government. Are you liable to be recalled, gentle- 
men, by the people who elected you ? Can they assemble in their respective 
counties and places of voting and revoke your elections? No; certainly not 
How is the governor himself responsible to the people ? By impeachment 
The people can not meet and nullify his election The governor had better 
be a little careful how he presses the contrary principle ; for, if the people 
could get a hold of him, he would go out with a much larger majority than 
he came in. The vote would be nearly unanimous. A more absurd : 
monstrous proposition could not be presented to the mind of man than 
this— that the power of appointment carried with it, as an incident, the 

power of removal. 

"To prove to you, gentlemen, that the power of appointment does not 
carry with it the power of removal, I will refer you to the rase of Marbury 
against Madison, decided in the Supreme Court of the United States. The 
same decision, also, proves another position— that whenever an offi« m- 

missioned for five years, to hold for that time during good behavior, t 
during those five years he holds by the same tenure as if he held for life, or 



428 . BEN HARDIN. 

good behavior, which decision is to be found in Peter's Condensed Reports, 
volume I, page 268, and so much of it as applies to this case reads in these 
words : 

" ' At the December term, 1801, William Marbury, Dennis Ramsay, Rob- 
ert Townsend Hooe, and William Harper, by their counsel, severally moved 
the court for a rule to James Madison, secretary of State of the United States, 
to show cause why a mandamus should not issue commanding him to cause 
to be delivered to them respectively, their several commissions as justices of 
the peace, in the District of Columbia. This motion was supported by affi- 
davits of the following facts : That notice of this motion had been given to 
Mr. Madison; that Mr. Adams, the late President of the United States, 
nominated the applicants to the Senate for their advice and consent to be 
appointed justices of the peace of the District of Columbia; that the Senate 
advised and consented to the appointments ; that commissions in due form 
were signed by the said president appointing them justices, etc., and that 
the seal of the United States was in due form affixed to the said commissions 
by the secretary of State ; that the applicants have requested Mr. Madison 
to deliver them their said commissions, who has not complied with that 
request ; and that their said commissions are withheld from them ; that the 
applicants have made application to Mr. Madison, as secretary of State of 
the United States, at his office, for information whether the commissions were 
signed and sealed as aforesaid ; that explicit and satisfactory information has 
not been given in answer to that inquiry, either by the secretary of State or 
any officer in the department of State ; that application has been made to the 
secretary of the Senate for a certificate of the nomination of the applicants, 
and of the advice and consent of the Senate, who has declined giving such 
a certificate; whereupon a rule was made to show cause on the fourth day of 
this term. This rule having been duly served, 

" ' Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to 
attend the court, and were required to give evidence, objected to be sworn, 
alleging that they were clerks in the department of State, and not bound to 
disclose any facts relating to the business or transactions of the office. 

" 'The court ordered the witnesses to be sworn and their answers taken 
in writing ; but informed them that when the questions were asked they 
might state their objections to answering each particular question, if they 
had any. 

" ' Mr. Lincoln, who had been the acting secretary of State, when the cir- 
cumstances stated in the affidavit occurred, was called upon to give testimony. 
He objected to answering. The questions were put in writing. 

" ' The court said there was nothing confidential required to be disclosed. 
If there had been, he was not obliged to answer it, and if he thought that 
anything was communicated to him confidentially he was not bound to dis- 
close, nor was he obliged to state anything which would criminate himself. 
" ' The questions argued by the counsel for the relators were : 
" 'First: Whether the Supreme Court can award the writ of mandamus 
in any case. 

" ' Second : Whether it will lie to a secretary of State in any case what- 
ever. 

" ' Third : Whether in the present case the court may award a mandamus 
to James Madison, secretary of State. 

" ' Mr. Chief-Justice Marshall delivered the opinion of the court. 



THE OWSLEY SPEECH. 






" 'At the last term, on the affidavits then read and filed with the i lerk, a 
rule was granted in this case, requiring the secretary of State to show i ause 
why a mandamus should not issue, directing him to deliver to William M 
bury his commission as a justice of the peace for the county of Washington, 
in the District of Columbia. 

" ' No cause has been shown, and the present motion is for a mandamus. 
The peculiar delicacy of this case, the novelty of some of its < in umstai 
and the real difficulty attending the points which occur in it. require a i om- 
plete exposition of the principles on which the opinion to be given bj the 
court is founded. These principles have been, on the side of the appli< ant, 
very ablyargued at the bar. In rendering the opinion of the court, there will 
be some departure in form, though not in substance, from the points stated 
in that argument. 

" 'In the order in which the court has viewed this subject, the following 
questions have been considered and decided : 

" '■First: Has the applicant a right to the commission he demands? 

" ' Second : If he has a right, and that right has been violated, do the 
laws of his country afford him a remedy ? 

" ' Third: If they do afford him a remedy, is it a mandamus issuing 
from this court ? 

" ' The first object of inquiry is, 

" ' First : Has the applicant a right to the commission he demands ? 

" 'His right originates in an act of Congress passed in February, 1S01, 
concerning the District of Columbia. 

" 'After dividing the district into two counties, the eleventh section of 
this law enacts "'that there shall be appointed in and for each of the said 
counties, such number of discreet persons to be justices of the peace as the 
President of the United States shall, from time to time, think expedient, to 
continue in office for five years." 

" ' It appears from the affidavits that, in compliance with this law, a com- 
mission for William Marbury as a justice of the peace for the county of 
Washington was signed by John Adams, then President of the United States. 
after which the seal of the United States was affixed to it ; but the commis- 
sion has never reached the person for whom it was made out. 

"'In order to determine whether he is entitled to this commission, it 
becomes necessary to inquire whether he has been appointed to the office. 
For, if he has been appointed, the law continues him in office for five y< 
and he is entitled to the possession of those evidences of office, which, being 
completed, became his property. 

" ' The second section of the second article of Constitution declares that, 
"the president shall nominate, and by and with the advice and consent "I 
the Senate, shall appoint embassadors, other public ministers and consuls, 
and all other officers of the United States, whose appointments are nol oth- 
erwise provided for." 

" 'The third section declares that, "he shall commission all the offi< era 
of the United States." 

" ' An act of Congress directs the secretary of State to keep the seal of 
the United States, "to make out and record and affix the said seal to a 
civil commissions to officers of the United States, to be appointed by the 
president, by and with the consent of the Senate, or by the president alone; 
provided that the said seal shall not be affixed to any commission before the 
same shall have been signed by the President of the United States." 



430 BEN HARDIN. 

"'These are the clauses of the Constitution and laws of the United 
States which affect this part of the case. They seem to contemplate three 
distinct operations : 

" ' First : The nomination. This is the sole act of the president, and is 
completely voluntary. 

" ' Second : The appointment. This is also the act of the president, and 
is also a voluntary act, though it can only be performed by and with the 
advice and consent of the Senate. 

"' Third: The commission. To grant a commission to a person 
appointed, might, perhaps, be deemed a duty enjoined by the Constitution. 
"He shall," says that instrument, " commission all the officers of the United 
States." The acts of appointing to office, and commissioning the person 
appointed, can scarcely be considered as one and the same ; since the power 
to perform them is given in two separate and distinct sections of the Consti- 
tution. The distinction between the appointment and the commission will 
be rendered more apparent by adverting to that provision in the second sec- 
tion of the second article of the Constitution, which authorizes Congress "to 
vest by law the appointment of such inferior officers as they think proper in 
the president alone, in the courts of law, or in the heads of depart- 
ments;" thus contemplating cases where the law may direct the president to 
commission an officer appointed by the courts or by the heads of depart- 
ments. In such a case, to issue a commission would be apparently a duty 
distinct from the appointment, the performance of which, perhaps, could not 
legally be refused. 

" ' Although that clause of the Constitution which requires the president 
to commission all the officers of the United States may never have been 
applied to officers appointed otherwise than by himself, yet it would be diffi- 
cult to deny the legislative power to apply it to such cases. Of consequence 
the constitutional distinction between the appointment to an office and the 
commission of an officer who has been appointed, remains the same as if in 
practice the president had commissioned officers appointed by an authority 
other than his own. 

"'It follows, too, from the existence of this distinction, that, if an 
appointment was to be evidenced by any public act other than the commis- 
sion, the performance of such public act would create the officer; and if he 
was not removable at the will of the president, would either give him a right 
to his commission or enable him to perform the duties without it. 

" 'These observations are premised solely for the purpose of rendering 
more intelligible those which apply more directly to the particular case under 
consideration. 

' ' ' This is an appointment made by the president, by and wjth the advice 
and consent of the Senate, and is evidenced by no act but the commission 
itself. In such a case, therefore, the commission and the appointment seem 
inseparable ; it being almost impossible to show an appointment otherwise 
than by proving the existence of a commission, still the commission is not 
necessarily the appointment, though conclusive evidence of it. 

" ' But at what stage does it amount to this conclusive evidence ? 

" ' The answer to this question seems an obvious one. The appointment, 
being the sole act of the president, must be completely evidenced when it is 
shown that he has done everything to be performed by him. 

" ' Should the commission, instead of being evidence of an appointment, 
even be considered as constituting the appointment itself, still it would be 



THE OWSLEY SPEECH. 43 , 

made when the last act to be done by the president was performed 
furthest, when the commission was complete. 

" 'The last act to be done by the president is the signature of the com- 
mission. He has then acted on the advice and 1 onsent of th 
own nomination. The time for deliberation has then p 11 

decided. His judgment on the advice and consenl of the Sen 
ring with his nomination has been made, and the officer is appoint 
appointment is evidenced by an open, unequivocal act ; and being th< 
act required from the person making it, necessarily excludes the idea of its 
being, so far as respects the appointment, an inchoate and in. omplete ti 
action. 

" 'Some point of time must be taken when the power of the executive 
over an officer, not removable at his will, must cease. That point <>f time 
must be when the constitutional power of appointment has bet 1 
And this power has been exercised when the last act, required from th< 
son possessing the power, has been performed. This last ai t is th iture 

of the commission. This idea seems to have prevailed with the Legislature 
when the act passed converting the department of foreign affairs into the 
department of State. By that act it is enacted, that the set retary of State 
shall keep the seal of the United States, "and shall make out and record, 
and shall affix the said seal to all civil commissions to officers of the United 
States, to be appointed by the president," "provided that the said seal shall 
not be affixed to any commission, before the same shall have been signed by 
the President of the United States ; nor to any other instrument or a< t. with- 
out the special warrant of the president therefor." 

" ' The signature is a warrant for affixing the great seal of the comn 
sion ; and the great seal is only to be affixed to an instrument which i> < :om- 
plete. It attests, by an act supposed to be of public notoriety, the verity of 
the presidential signature. 

" ' It is never to be affixed till the commission is signed, because the 
nature, which gives force and effect to the commission, is conclusive evid< 
that the appointment is made. 

" 'The commission being signed, the subsequent duty of the secretarj 
State is prescribed by law, and not to be guided by the will of the president. 
He is to affix the seal of the United States to the commission, and i 
record it. 

" 'This is not a proceeding which may be varied, if the judgment of the 
executive shall suggest one more eligible ; but is a precise course a< < urately 
marked out by law, and is to be strictly pursued. It is the duty of the 
retary of State to conform to the law, and in this he is an officer of the 
United States, bound to obey the laws. He acts, in this respect, as has ' 
very properly stated at the bar, under the authority of law. and n<>t by the 
instruction of the president. It is a ministerial act which the law enjoins on 
a particular officer for a particular purpose. 

" 'If it should be supposed that the solemnity of affixing the seal is nec- 
essary, not only to the validity of the commission, but even to the comple- 
tion of an appointment, still, when the seal is affixed, the appointment 
made, and the commission is valid. No other solemnity is required by law ; 
no other act is to be performed on the part of the government. All that the 
executive can do to invest the person with his office is done; and unl 
appointment be then made, the executive can not make one without the 
co-operation of others. 



432 BEN HARDIN. 

" ' After searching anxiously for the principles on which a contrary opin- 
ion may be supported, none have been found which appear of sufficient force 
to maintain the opposite doctrine. 

" 'Such as the imagination of the court could suggest, have been very 
deliberately examined, and after allowing them all the weight which it 
appears possible to give them, they do not shake the opinion which has 
been formed. 

" ' In considering this question, it has been conjectured that the commis- 
sion may have been assimilated to a deed, to the validity of which, delivery 
is essential. 

" 'This idea is founded on the supposition that the commission is not 
merely evidence of an appointment, but is itself the actual appointment ; a 
supposition by no means unquestionable. But for the purpose of examining 
this objection fairly, let it be conceded that the principle claimed for its sup- 
port is established. 

" 'The appointment being, under the Constitution, to be made by the 
president personally, the delivery of the deed of appointment, if necessary 
to its completion, must be made by the president also. It is not necessary 
that the delivery should be made personally to the grantee of the office ; it 
never is so made. The law would seem to contemplate that it should be 
made to the secretary of State, since it directs the secretary to affix the seal 
to the commission after it shall have been signed by the president. If then 
the act of livery be necessary to give validity to the commission, it has been 
delivered when executed and given to the secretary for the purpose of being 
sealed, recorded, and transmitted to the party. 

" ' But in all cases of letters patent, certain solemnities are required by 
law, which solemnities are the evidences of the validity of the instrument. 
A formal delivery to the person is not among them. In cases of commis- 
sions, the sign manual of the president, and the seal of the United States, 
are those solemnities. This objection, therefore, does not touch the case. 

" ' It has also occurred as possible, and barely possible, that the transmis- 
sion of the commission, and the acceptance thereof, might be deemed nec- 
essary to complete the right of the plaintiff. 

' ' ' The transmission of the commission is a practice directed by conven- 
ience, but not by law. It can not, therefore, be necessary to constitute the 
appointment which must precede it, and which is the mere act of the presi- 
dent. If the executive required that every person appointed to an office 
should himself take means to procure his commission, the appointment 
would not be the less valid on that account. The appointment is the sole 
act of the president ; the transmission of the commission is the sole act of 
the officer to whom that duty is assigned, and may be accelerated or retarded 
by circumstances which can have no influence on the appointment. A com- 
mission is transmitted to a person already appointed; not to a person to be 
appointed or not, as the letter enclosing the commission should happen to 
get into the post-office and reach him in safety, or to miscarry. 

" ' It may have some tendency to elucidate this point to inquire whether 
the possession of the original commission be indispensably necessary to 
authorize a person appointed to any office to perform the duties of that 
office. If it was necessary, then a loss of the commission would lose the 
office. Not only negligence, but accident or fraud, fire or theft, might 
deprive an individual of his office. In such a case, I presume it could not 
be doubted but that a copy from the record of the office of the secretary of 



THE OWSLEV SPEECH. 4^3 

State would be, to every intent and purpose, equal to the original. Th 

Congress has expressly made it so. To give that copy validity, it would 
be necessary to prove that the original had been transmitted and afterw 
lost. The copy would be complete evidence that the original had 1 
and that the appointment had been made, but not that the original had 1 
transmitted. If, indeed, it should appear that the original had been m 
in the office of State, that circumstance would not affe< I the operation of the 
copy. When all the requisites have been performed which authori; 
recording officer to record any instrument whatever, and the order for that 
purpose has been given, the instrument is in law considered a ded, 

although the manual labor of inserting it in a book kept for that purpose 
may not have been pei formed. 

" 'In the case of commissions, the law orders the secretary of State to 
record them. When, therefore, they are signed and sealed, the order for 
their being recorded is given ; and whether inserted in the book or not. they 
are in law recorded. 

" ' A copy of this record is declared equal to the original, ami the I 
to be paid by a person requiring a copy are ascertained by law. ("an a 
keeper of a public record erase therefrom a commission which has ! 
recorded? Or can he refuse a copy thereof to a person demanding it. on 
the terms prescribed by law ? 

" ' Such a copy would, equally with the original, authorize the ju-ai< e of 
the peace to proceed in the performance of his duty, because it would, 
equally with the original, attest his appointment. 

" ' If the transmission of a commission be not considered as necessary to 
give validity to an appointment, still less is its acceptance. The appoint- 
ment is the sole act of the president ; the acceptance is the sole a< t of the 
officer, and is, in plain, common sense, posterior to the appointment. As he- 
may resign, so may he refuse to accept ; but neither the one nor the other 
is capable of rendering the appointment a nonentity. 

"'That this is the understanding of the government, is apparent from 
the whole tenor of its conduct. 

" ' A commission bears date, and the salary of the officer commen< 
from his appointment, not from the transmission or acceptance of his com- 
mission. When a person, appointed to any office, refuses to accept that 
office, the successor is nominated in the place of the person who has de< lined 
to accept, and not in the place of the person who had been previously in 
office and had created the original vacancy. 

" ' It is, therefore, decidedly the opinion of the court that, when a com- 
mission has been signed by the president, the appointment is made: 
that the commission is complete when the seal of the United - ias been 

affixed to it by the secretary of State. 

" ' When an officer is removed at the will of the executive, the circum- 
stance which completes his appointment is of no concern. 1 
is at any time revocable; and the commission may be arrested, if still in the 
office. But when the officer is not removable at the will of th< tive, 

the appointment is not revocable and can not be annulled. It has conferred 
legal rights which can not be resumed. 

" 'The discretion of the executive is to be exercised until the appoint- 
ment has been made. But having once made the appointment, 
over the office is terminated in all cases, where by law the 1 
removable by him. The right to the office is then in the person appointed, 

28 



434 



BEN HARDIN. 



and he has the absolute, unconditional power of accepting or rejecting 
it. Mr. Marbury, then, since his commission was signed by the president 
and sealed by the secretary of State, was appointed ; and as the law creating 
the office gave the officer a right to hold for five years, independent of the 
executive, the appointment was not revocable, but vested in the officer legal 
rights, which are protected by the laws of his country. 

" ' To withhold his commission, therefore, is an act deemed by the court 
not warranted by law, but violative of a vested legal right. 

" ' This brings us to the second inquiry, which is : 

" 'Second: If he has a right, and that right has been violated, do the laws 
of his country afford him a remedy ? 

" ' The very essence of civil liberty certainly consists in the right of every 
individual to claim the protection of the laws whenever he receives an injury. 
One of the first duties of government is to afford that protection. In Great 
Britain the king himself is sued in the respectful form of a petition, and he 
never fails to comply with the judgment of his court. 

" ' In the third volume of his Commentaries, page 23, Blackstone states 
two cases in which a remedy is afforded by mere operation of law. 

" ' " In all other cases," he says "it is a general and indisputable rule, 
that where there is a legal right, there is also a legal remedy by suit or action 
at law whenever that right is invaded." 

" ' And afterward, page 109 of the same volume, he says, " I am next to 
consider such injuries as are cognizable by the courts of the common law. 
And herein I shall for the present only remark, that all possible injuries what- 
soever, that did not fall within the exclusive cognizance of either the ecclesi- 
astical, military, or maritime tribunals, are, for that very reason, within the 
cognizance of the common law courts of justice, for it is a settled and inva- 
riable principle in the laws of England, that every right, when withheld, must 
have a remedy and every injury its proper redress." 

" 'The government of the United States has been emphatically termed a 
government of laws, and not of men. It will certainly cease to deserve this 
high appellation if the laws furnish no remedy for the violation of a vested 
legal right. 

" 'If this obloquy is to be cast on the jurisprudence of our country, it 
must arise from the peculiar character of the case. 

" ' It behooves us, then, to inquire whether there be in its composition 
any ingredient which shall exempt it from legal investigation or exclude the 
injured party from legal redress. In pursuing this inquiry the first question 
which presents itself, is, whether this can be arranged with that class of cases 
which comes under the description of damnum absque injuria — a loss without 
an injury. 

" 'This description of cases never has been considered, and it is believed 
never can be considered, as comprehending offices of trust, of honor, or of 
profit. The office of justice of peace in the District of Columbia is such 
an office; it is, therefore, worthy of the attention and guardianship of the 
laws. It has received that attention and guardianship. It has been created 
by special act of Congress, and has been secured, so far as the .laws can give 
security to the person appointed to fill it, for five years. It is not, then, on 
account of the worthlessness of the thing pursued that the injured party can 
be alleged to be without remedy. 

" • It is in the nature of the transaction. Is the act of delivering or with- 
holding a commission to be considered as a mere political act belonging to 



THE OWSLEY SPEECH. 



435 



the executive department alone, for the performance of which entu 
dence is placed by our Constitution in the supreme executive; and I 
misconduct respecting which the injured individual has no remedy. 

" 'That there may be such cases is not to be questioned ; but that every 
act of duty to be performed in any of the great departments i i rnment 

constitutes such a case is not to be admitted. 

" ' By the act concerning invalids, passed in June, 1794, the secretary 
war is ordered to place on the pension list all persons whose nam 
tained in a report previously made by him to Congress. If he should 
to do so, would the wounded veteran be without remedy? Is u to he 
tended that where the law in precise terms directs the perform. uk e of an 
in which an individual is interested, the law is incapable of securing ol 
ence to its mandate? Is it on account of the character of the person against 
whom the complaint is made? Is it to be contended that the heads of depart- 
ments are not amenable to the laws of their country ? 

"'Whatever the practice on particular occasions may he. the theory of 
this principle will certainly never be maintained. No act of the Legislature 
confers so extraordinary a privilege, nor can it derive countenance from the 
doctrines of the common law. After stating that personal injury from the 
king to a subject is presumed to be impossible, Blackstone, volume III. ; 
255, says: " But injuries to the rights of property can scarcel) becomm 
by the crown without the intervention of its officers, for whom the law. m 
matters of right, entertains no respect or delicacy, but furnishes various meth- 
ods of detecting the errors and misconduct of those agents by whom the king 
has been deceived and induced to do a temporary injustice." 

" ' By the act passed in 1796, authorizing the sale of lands above the mouth 
of Kentucky river, the purchaser, on paying his purchase money, becomes 
completely entitled to the property purchased ; and on producing to the 
retary of State the receipt of the treasurer upon a certificate required by the 
law, the President of the United States is authorized to grant him a patent 
It is further enacted, that all patents shall be countersigned by the se< retary 
of State, and recorded in his office. If the secretary of State should ch< 
to withhold this patent, or the patent being lost, should refuse a copy of it, 
can it be imagined that the law furnishes to the injured person no remedy? 

" ' It is not believed that any person whatever would attempt to maintain 
such a proposition. 

" ' It follows, then, that the question, whether the legality of an acl of the 
head of a department be examinable in a court of justice or not. must always 
depend on the nature of that act. 

" ' If some acts be examinable, and others not, there must he some rule 
of law to guide the court in the exercise of its jurisdiction. 

" ' In some instances there may be difficulty in applying the rule to par- 
ticular cases ; but there can not, it is believed, be much difficulty in laying 
down the rules. 

" ' By the Constitution of the United States, the president is invested with 
certain important political powers, in the exercise of which he is to use his 
own discretion, and is accountable only to his country in his political ch 
ter and to his own conscience. To aid him in the performance of these duties 
he is authorized to appoint certain officers, who acl by his authority and in 
conformity with his orders. 

" ' In such cases their acts are his acts, and whatever opinion may be enter- 
tained of the manner in which executive discretion may be used, still there 



436 BEN HARDIN. 

exists, and can exist, no power to control that discretion. The subjects are 
political. They respect the nation, not individual rights, and being entrusted 
to the executive, the decision of the executive is conclusive. The application 
of this remark will be perceived by adverting to the act of Congress for estab- 
lishing the department of foreign affairs. This officer, as his duties were pre- 
scribed by that act, is to conform precisely to the will of the president. He 
is the mere organ by whom that will is communicated. The acts of such an 
officer, as an officer, can never be examinable by the courts. 

" ' But when the Legislature proceeds to impose on that officer other 
duties ; when he is directed peremptorily to perform certain acts; when the 
rights of individuals are dependent on the performance of those acts; he is 
so far the officer of the law, is amenable to the laws for his conduct, and can 
not at his discretion sport away the vested rights of others. 

" 'The conclusion from this reasoning is that where the heads of depart- 
ments are the political or confidential agents of the executive, merely to exe- 
cute the will of the president, or rather to act in cases in which the execu- 
tive possesses a constitutional or legal discretion, nothing can be more per- 
fectly clear than that their acts are only politically examinable. But where 
a specific duty is assigned by law, and individual rights depend upon the 
performance of that duty, it seems equally clear that the individual who con- 
siders himself injured has a right to resort to the laws of his country for a 
remedy. 

" ' If this be the rule, let us inquire how it applies to the case under the 
consideration of the court. ■ 

" 'The power of nominating to the Senate, and the power of appointing 
the person nominated, are political powers, to be exercised by the president, 
according to his own discretion. When he has made an appointment, lie 
has exercised his whole power, and his discretion has been completely applied 
to the case. If, by law, the officer be removable at the will of the presi- 
dent, then a new appointment may be immediately made, and the rights of 
the officer are terminated. But, as a fact which has existed can not be made 
never to have existed, the appointment can not be annihilated ; and, conse- 
quently, if the officer is by law not removable at the will of the president, 
the rights he has acquired are protected by the law, and are not resumable 
by the president. They can not be extinguished by executive authority, and 
he has the privilege of asserting them in like manner as if they had been 
derived from any other source. 

" ' The question whether a right has vested or not, is, in its nature, judi- 
cial, and must be tried by the judicial authority. If, for example, Mr. Mar- 
bury had taken the oaths of a magistrate, and proceeded to act as one, in 
consequence of which a suit had been instituted against him, in which his 
defense had depended upon his being a magistrate, the validity of his 
appointment must have been determined by judicial authority. 

" 'So, if he conceives that by virtue of his appointment he has a legal 
right either to the commission which has been made out for him, or to a copy 
of that commission, it is equally a question examinable in a court, and the 
decision of the court upon it must depend upon the opinion entertained on 
his appointment. 

" ' That question has been discussed, and the opinion is that the latest 
point of time which can be taken as that at which the appointment was 
complete and evidenced, was when, after the signature of the president, the 
seal of the United States was affixed to the commission. 



THE OWSLKV SPEECH. 



437 



" < It is, then, the opinion of the court, that by signing the < ommi 
Mr. Marbnry, the President of the United States appointed him a justii 
the peace for the county of Washington, in the district of Columbia 
that the seal of the United States, affixed thereto b) the 
is conclusive testimony of the verity of the signature, and of the comple- 
tion of the appointment; and that the appointment conferred on him a 
legal right to the office for the space of five years.' 

"What are the responsibilities of the secretary of State? His oath ol 
office is one. His liability to be sued by each individual injured by him, either 
because he would not act or acted wrong ; and his responsibility to the peo- 
ple, by impeachment. But the governor says that the Constitution and the 
laws do not say that the secretary is in no other way responsible. To thai 1 
answer I am in no way responsible for my actions, either officially or individ- 
ually, unless I am made so by the Constitution and the law. Isth 
under-responsibility to the governor unless there is a constitutional negative 
upon such power? The reverse is the case. The governor has no power, 
unless the same is given him by the Constitution and law. 

" This question has been decided by the Senate of Illinois, and also the 
Court of Appeals of that State. The governor of that State attempted to 
remove the secretary, whose name was Fields, and appointed a McClernand 
in his place. The Senate of that State decided the governor of that State- 
had not the power to remove the secretary of State. The Constitution of 
Illinois, in relation to the secretary of State, is nearly like that of Kcntu< ky. 
The clause I refer to is to be found in volume II, Scammon's Reports. ; 
82, and reads in these words : 

"' Article 3, Sec. 20. The governor shall nominate, and by and with 
the advice and consent of the Senate, appoint a secretary of State, who shall 
keep a fair register of the official acts of the governor, and. when required, 
shall lay the same, and all papers, minutes, and vouchers relative thereto, 
before either branch of the General Assembly, and shall perform su< h other 
duties as shall be assigned him by law.' 

" You will perceive, Mr. Chairman, that the section I have just read, -iocs 
not give the secretary the office by the tenure of good behavior; but. yet it 
was construed to have that effect, and that' he was not responsible to the 
ernor, but to the people of Illinois. 

"From the same, as a part of the opinion of the Court of Appeals of Illi- 
nois, I will read a few extracts. Page 118 you will find these words 

"'The governor is, neither in fact nor in theory, personally <>r politically 
responsible for the official conduct of the secretary, or any other offi 
He can not assign him the performance of a single duty, or control hm 
the performance of those assigned by law. He does nol move in the ex 
utive circle, as has been said, but in that marked out by the Cons 
and the law, separate, distinct from, and independent 
governor. He looks to the law for his authority and duties, ami not to 
governor, and to that, and that alone, he is responsible for their per- 
formance.' 



438 BEN HARDIN. 

" I will read from the same book, page 160, a part of the same opinion, 
which reads in these words : 

" ' Third: Does that provision of the Constitution which requires that 
the governor " shall take care that the laws be faithfully executed," empower 
him to remove the secretary, or any other officer, at his will and pleasure ? 
If, as has been shown before, the governor possesses the power of removal 
under this provision, then he may not only remove the secretary of State, 
but every other officer in the State, except judges. For the reasons hereto- 
fore given, no such power can be implied in this case. Nor is it necessary 
that the governor should have this power, in order to enable him to comply 
with this injunction of the Constitution. All that the Constitution contem- 
plates is that the governor shall exercise a general oversight over the opera- 
tions of the laws, and use such means as the laws have placed in his hands 
to overcome opposition and remove obstacles to their due enforcement. If 
the laws be defective, or inefficient, it would doubtless be his duty to inform 
the Legislature of such defects, and point out proper remedies. If the laws 
be opposed by force, it would be his duty, as the chief executive of the 
State, to call out the militia to aid the civil officer to put down such opposi- 
tion. If a crime be committed, and the perpetrator escape into another 
State or country, it would be his duty to demand of the executive of the 
State where the fugitive had fled that he be delivered up to the courts of 
this State for trial. Should a flagrant crime be secretly committed, he may, 
by proclamation, give notice of the fact, and offer a reward for the discov- 
ery of the perpetrator, and for his apprehension In these and similar ways, 
I think the governor will find full scope for his vigilance, in taking "care 
that the laws be faithfully executed." Should the secretary, or any other 
officer, neglect or refuse to perform his duty, the laws possess sufficient 
energy to compel compliance, without resorting to the power of removal. If 
the secretary refuses or neglects to perform any official duty, he may be 
impeached. He may also be compelled to perform the duty by mandamus. 
If he, or any other officer, act partially or oppressively, from a malicious or 
corrupt motive, it is a fundamental principle of our government that he may 
be punished, by a criminal prosecution. The sheriffs of the different coun- 
ties have more duties to perform, in relation to the execution of the laws, 
than all the other officers in the State ; yet, the present laws are abundantly 
sufficient to coerce these officers to a faithful discharge of their duties. For 
malfeasance, oppression, partiality in the discharge of their duties, or for 
any palpable omission of duty, they are liable to be indicted, and on con- 
viction, to be removed from office. In addition to this, a party injured has 
a civil action, and for many neglects of duty, the courts of record have 
power to imprison them for contempt. I therefore conclude that it was not 
necessary, to enable the governor to take care that the laws be faithfully 
executed, that he should possess the royal prerogative to remove the secre- 
tary, or any other officer. If, however, as I have before observed, the pres- 
ent laws are inefficient, it will be within the scope of legislative competency 
to provide other means to secure the faithful performance of official duties. 
Should the Legislature deem it wise to vest this power in the governor, they 
have the right to do so; and if the governor is to have this power, it is 
much better that it should be by legislative grant than by the Constitution.' 

" Again : I will call the attention of the committee to another part of the 
opinion, page 182, which reads in these words : 



THE OWSLEY SPEECH. 






" ' All the duties of the secretary are cither defined in the ( lonstitution >>r 
in the laws: and nowhere is any authority given to thi 
direct what he shall do, how he shall do it, or even to < .ill Oil him tor ( oun- 
sel or advice. On the contrary, I think it is fairly inferable from the 
of the Constitution, not only that the secretary is not a confidential offi( er of 
the governor, but that it was intended he should not he one. The 
by the Constitution, when required, "shall lay the official acts of tl 
ernor, and all papers, minutes, and vouchers relative thereto, before eitl 
branch of the General Assembly." If the secretary is t<> U- considered a 
confidential officer of the governor, and removable at his pleasure, it would 
be in the power of the governor, at any time, if he wished to conceal his 
acts from the Legislature, to defeat this provision of the Constitution. And 
if the governor did not resort to removal, and was unwilling his a< ts should 
be known by the General Assembly, this confidential officer would be pla< ed 
in the unpleasant dilemma of betraying the confidence of his principal, or 
violating the Constitution of his country. But is the secretary of Si 
confidential officer? The duties of his office, in all the States of the Union, 
are essentially the same. ' 

" I find in a book of two volumes, containing the speeches of Henry Clay, 
the following extracts : 

" ' The mere act of dismission or removal may be of an executive nam 
but the judgment or sentence which precedes it is a function of a judicial 
andnotexecutivenature. Impeachments which, as has been already observed, 
are the only mode of removal from office expressly provided for in tin- Con- 
stitution, are to be tried by the Senate, acting as a judicial tribunal. In 
England, and in all other States, they are tried by judicial tribunals. 

" 'In several of the States removal from office sometimes is effe< ted by 
the legislative authority, as in the case of judges, on the concurrence of tu 
thirds of the members. The administration of the laws of the several States 
proceeds regularly without the exercise on the part of the governor of any 
power similar to that which is claimed for the president. In Kentucky, and 
in other States, the governor has no power to remove sheriffs, collectors of 
the revenue, clerks of courts, or any one officer employed in administration ; 
and yet the governor, like the president, is constitutionally enjoined I 
that the laws are faithfully executed. 

" ' It is contended that the president can not see that the laws are faith- 
fully executed unless he possesses the power of removal. That injunction of 
the Constitution imports a mere general superintendence, except where he 
is specially charged with the execution of a law. It is not nei hat he 

should have the power of dismission. It will be a sufficient securitj . 
the abuses of subordinate officers that the eye of the president is upon tl 
and that he can communicate their delinquency. The State executives d< 
not possess this power of dismission. In several, if not all. the Stat 
governor can not even dismiss the secretary of State: yet we have heard no 
complaints of the inefficiency of State executives or of the administration . 
the laws of the States. The president has no power to dismiss the judiciary; 
and it might be asked, with equal plausibility, how he could see that the laws 
are executed if the judges will not conform to his opinion, and he can not 

dismiss them ? 

" ' The president is enjoined by the Constitution to take care that 
be faithfully executed. Under this injunction, the power of dismiss,on is 



440 BEN HARDIN. 

claimed for him ; and it is contended that if those charged with the execu- 
tion of the laws attempt to execute them in a sense different from that enter- 
tained by the president, he may prevent it or withhold his co-operation. It 
would follow, that if the judiciary give to the law an interpretation variant 
from that of the president, he would not be bound to afford means which 
might become necessary to execute their decision. If these pretensions are 
well founded, it is manifest that the president, by means of a veto, in arrest- 
ing the passage of laws which he disapproves, and the power of expounding 
those which are passed, according to his own sense of them, will become 
possessed of all the practical authority of the whole government. If the 
judiciary decide a law contrary to the president's opinion of its meaning, he 
may command the marshal not to execute the decision, and urge his consti- 
tutional obligation to take care that the laws be faithfully executed. It will 
be recollected, perhaps, by the Senate, that during the discussion on the 
deposit question, I predicted that the day would arrive when a president, 
disposed to enlarge his powers, would appeal to his official oath as a source 
of power. In that oath he undertakes that he will " to the best of his abil- 
ity preserve, protect, and defend the Constitution of the United States." The 
fulfillment of the prediction quickly followed; and during the same session, 
in the protest of the president, we find him referring to this oath as a source 
of power and duty. Now, if the president, in virtue of his oath, may inter- 
pose and prevent anything from being done contrary to the Constitution, as 
he understands it, and may, in virtue of the injunction to take care that the 
laws be faithfully executed, prevent the enforcement of any law contrary to 
the sense in which he understands it, I would ask what powers remain to any 
other branch of the government ? Are they not all substantially absorbed 
in the will of one man ? ' 

"Mr. Chairman, while I am reading the opinions of the great men of 
this nation upon the danger of exercising the tremendous power of removal, 
I will read a part of report made by Mr. Benton, in 1826, in which he 
said : 

" ' " The king of England is the fountain of honor;" the president of 
the United States is the source of patronage. He presides over the entire 
system of federal appointments, jobs, and contracts. He has power over 
the "support" of the individuals who administer the system. He makes 
and unmakes them. He chooses from the circles of his friends and sup- 
porters, and may dismiss them ; and, upon all the principles of human 
actions, he will dismiss them as often as they disappoint his expectations. 
There may be exceptions, but the truth of the general rule is proved by the 
exception. The intended check and control of the Senate, without new 
constitutional or statutory provisions, will cease to operate. Patronage will 
penetrate this body, subdue its capacity of resistance, chain it to the car of 
power, and enable the president to rule as easily, and much more securely, 
with than without the nominal check of the Senate. If the president him- 
self was the officer of the people, elected by them and responsible to them, 
there would be less danger from this concentration of all power in his 
hands ; but it is the business of statesmen to act upon things as they are, 
and not as they would wish them to be. We must look forward to the time 
when the public revenue will be doubled; when the civil and military offi- 
cers of the government will be quadrupled ; when its influence over indi- 
viduals will be multiplied to an indefinite extent ; when the nomination of 



THE OWSLEY SPEE( li. 4.} 1 

the president can carry any man through the Senate, and his recommenda- 
tion can carry any measure through the two Houses of Co ; when the 
principle of public action will be open and avowed the president wants 
my vote, and 1 want his patronage 5 I will vote as he wishes, and he will 
give me the office I wish for. What will this be but the government ol 
man? And what is the government of one man but a munan h) ? \ 
are nothing. The nature of a thing is in its substan< e, and the name soon 
accommodates itself to the substance. Those who make the president must 
support him. Their political fate becomes identified, and they must stand 
or fall together. Right or wrong, they must support him,' etc. 

" All this was prophecy then — it is now history. 

" In the year 1835. Mr. Calhoun took up the subject of exe< utive patron 

age generally, and submitted to the Senate a measure for its reduction, 
accompanied by a most elaborate and able report, part of which reads in 
these words : 

" ' It is only within the last four years that removals from office have 
been introduced as a system ; and, for the first time, an opportunity has been 
afforded of testing the tendency of the practice and witnessing the mighty 
increase which it has given to the force of executive patronage, ami the 
entire and fearful change, in conjunction with other causes, it is effe< til 
in our political system. Nor will it require much reflection to perceive in 
what manner it contributes to increase so vastly the extent of executive 
patronage. 

" ' So long as offices were considered as public trusts, t" be conferred on 
the honest, the faithful, and the capable, for the common good, and not for 
the benefit or gain of the incumbent or his party, and so long as it was the 
practice of the government to continue in office those who faithfully per- 
formed their duties, its patronage, in point of fact, was limited to the mere 
power of nominating to accidental vacancies or to newly-created offi< es, and 
would, of course, exercise but a moderate influence, either over the body of 
the community or over the offkediolders themselves ; but when this practi< e 
was reversed — when offices, instead of being considered as public trusts, to 
be conferred on the deserving, were regarded as the spoils of victory, to be 
bestowed as rewards for partisan service — it is easy to see that the certain, 
direct, and inevitable tendency of such a state of things is to ... inert I 
entire body of those in office into corrupt and supple instruments of power, 
and to raise up a host of hungry, greedy, and subservient partisai 
for every service, however base 'and corrupt. Were a premium ol 
the best means of extending, to the utmost, the power of patronage; 
destroy the love of country, and to substitute a spirit of subseryienc) 
man-worship; to encourage vice and to discourage virtue : and. 111 a wo 
to prepare for the subversion of liberty and the establishment ol a d< 
no scheme more perfect could be devised ; -and such must he the 
of the practice, with whatever intention adopted, or to whatever 
pursued." 

"Mr. Webster supported the measure of Mr. Calhoun in a spei 
great ability, in which he uses these words ; 

" ' I concur with those who think that, looking to the present, and. 
ing also to the future, and regarding all the probabilities ol what 



442 BEN HARDIN. 

us, as to the qualities which shall belong to those who may fill the executive 
chair, it is important to the stability of government and the welfare of the 
people that there should be a check to the progress of official influence and 
patronage. The unlimited power to grant office, and to take it away, gives 
a command over the hopes and fears of a vast multitude of men. It is 
generally true that he who controls another man's means of living controls 
his will. Where there are favors to be granted, there are usually enough to 
solicit for them ; and when favors once granted may be withdrawn at pleas- 
ure, there is ordinarily little security for personal independence of character. 
The power of giving office thus, affects the fears of all who are in, and the 
hopes of all who are out. Those who are out endeavor to distinguish them- 
selves by active political friendship, by warm personal devotion, by clamor- 
ous support of men in whose hands is the power of reward; while those 
who are in, ordinarily take care that others shall not surpass them in such 
qualities or such conduct as is most likely to secure favor. They resolve 
not to be outdone in any of the works of partisanship. The consequence 
of all this is obvious. A competition ensues, not of political labors, not of 
rough and severe toils for the public good, not of manliness, independence, 
and public spirit, but of complaisance, of indiscriminate support of execu- 
tive measures, of pliant subserviency, and gross adulation. All throng and 
rush together to the altar of man worship ; and there they offer sacrifices, 
and pour out libations till the thick fumes of their incense turn their own 
heads, and turn, also, the head of him who is the object of their idolatry. 

" ' Sir, we can not disregard our own experience. We can not shut our 
eyes to what is around us and upon us. No candid man can deny that a 
great, a very great change has taken place, within a few years, in the prac- 
tice of the executive government, which produced a corresponding change 
in our political condition. No one can deny that office of every kind is 
now sought with extraordinary avidity, and that the condition well under- 
stood to be attached to every office, high or low, is indiscriminate support of 
executive measures, and implicit obedience to executive will. For these 
reasons, sir. I am for arresting the further progress of executive patronage, 
if we can arrest it. I am for staying the further contagion of this plague.' 

" I have read, Mr. Chairman, all the authorities I intended to read to 
the committee upon this branch of the question. I will leave it with one 
remark more. It is a strong argument against the power now claimed by 
the governor, that it has never been exercised before — nay, never asserted. 
It belongs only to the boldness of Governor Owsley to put forward such 
high claims to power — perhaps the more appropriate expression would be, 
instead of boldness, the obstinate malignity of Governor Owsley. 

"Mr. Chairman, the tenure of the office of secretary of the State of 
Kentucky has been assimilated to that of secretary of State of the United 
States. The analogy does not hold good in any one particular, except the 
mere name. The office of secretary for the State of Kentucky is created by the 
Constitution of Kentucky. That of the United States, by act of Congress. 
The duties of secretary of State for Kentucky are pointed out by the Con- 
stitution and the laws of Kentucky. The duties of the secretary of State 
for the United States are those things pointed out to him by the President of 



THE OWSLEY SPEECH. 

the United States. The secretary of State is to hold his office for four 
years, if he shall so long behave well. The secretary of the United States 
is removable at the pleasure of the president. 1 will dismiss that part ol 
this subject as unworthy of further notice, by reading the act of Conj 
which reads in these words : 

" ' Section i. Be it enacted, etc., that there shall be an executive depart- 
ment, to be denominated the department of foreign affairs [name si 

changed to department of State], and that there shall be a principal "it]. 
therein, to be called the secretary of the department of foreign affairs [sin< e 
changed to secretary of State], who shall perform and execute such dut 
shall, from time to time, be enjoined on or entrusted to him by the President 
of the United States, agreeable to the Constitution, relative to correspond- 
ence, commissions, or instructions, to or with public ministers or consuls, 
from the United States, or to negotiations with public ministers from forei 
States, or princes, or to memorials or other applications from foreign public 
ministers, or other foreigners, or to such other matters respecting foreign 
affairs as the President of the United States shall assign to the said depart- 
ment ; and, furthermore, that the said principal officer shall conduct the business 
of said department in such manner as the President of the United States shall, 
from time to time, order or instruct. 

" ' Sec. 2. That there shall be in the said department an inferior offi< 
to be appointed by the principal officer, and to be employed therein as he 
shall deem proper, and to be called the chief clerk in the department of for- 
eign affairs ; and who, whenever the said principal officer shall be removed from 
office by the President of the United States, or in any other case of vacancy, have 
the charge and custody of all records, books, and papers appertaining to the 
said department, i Storey's Laws U. S., page 5.' 

" Mr. Chairman, there are a few general remarks I wish to make, which 
come under no regular head. I have signed my name to not less than fifteen 
thousand State bonds and coupons, for which I never got one cent or asked 
one cent. It was no part of my duty as secretary. Mr. Harlan got, when 
secretary, two hundred and fifty dollars for signing State bonds and coupons. 
When the Legislature, in the session of 1845, called upon Mr. Cates and 
myself to compile the revenue laws, Mr. Cates copied the laws, for which he 
got three hundred dollars. I, in obedience to a resolution of the Legislature, 
digested a revenue system and reported it to each House of the General 
Assembly in 1846. That cost me much labor. I charged not one cent for 
it. That was no part of my business as secretary. When I was (ailed upon 
as one of the arbitrators in the case of the claim of John Tilford, to n 
the other arbitrators and settle if we could, I met the other gentlemen. We 
used every effort we could to settle it, but we could not on account of my 
disagreement with the other two. The Legislature called on the arbitrators 
for a report. I made out mine with much labor, and which was approved by 
a majority of both Houses of the General Assembly. For that I neither 
nor charged a cent. I paid out of my own pocket. Charles Morri ■>•- 

ing the two reports— one in the case of Tilford and the other the system 



<\/\.-\ BEN HARDIN. 

of revenue — five dollars. I never asked to be reimbursed even that sum. 
The secretary and some other gentlemen were directed to examine the pub- 
lic library, and report the state of the books, etc. I spent near two weeks 
in performing that labor, and drew a report — the other gentlemen signed it 
but never looked at a book. I do not, Mr. Chairman, make these remarks 
to boast of what I have done, out of my duty as secretary, for nothing ; but 
to repel the imputation of the governor, that I took the office to make money 
out of it, without rendering services. Such malignant insinuations I throw 
back in the teeth of the governor with scorn and contempt. 

" I have not continued in office for either the honor of holding it or the 
emoluments of the office. It is no honor for me to hold office under Gov- 
ernor Owsley. I was advised by a lady of this town, the day I entered the 
office, not to accept. She warned me against it, and pointed out, with the 
spirit of prophecy, the indignities I would have to submit to and the persecu- 
tions I would have to endure. She knew the governor and the Owsley 
family much better and more intimately than I did. She was like Cassandra, 
the daughter of Priam, king of ancient Troy. In her advice to me, she had 
the gift of prophecy ; but, yet, like Cassandra, she was not credited. 

" I have held the office, seeking a fit opportunity to resign, without appear- 
ing to be driven out of it. I spurn Governor Owsley, the office, and salary 
as I do the dust I tread on. If I could have honorably got clear of the com- 
mission, I could in my heart have torn it to pieces, dashed it on the ground, 
and stamped it under my feet. 

" No, Mr. Chairman, I fight this battle singly and alone against the whole 
power of the administration. I fight for my honor, my character, my repu- 
tation, and for the proud feelings of my family, who are, both by blood and 
marriage, equal to any in America. Thank God, I have now an opportunity 
to do it before the Senate, the House of Representatives, the crowded assem- 
bly, the State, and nation at large. I fight the battle, also, to restore the Con- 
stitution of my country— broken and violated by an invasion of my political 
rights. If the Senate decide that the governor has a right, without cause, to 
remove me, then I leave the office cheerfully, for I would not hold an office 
at his will and pleasure. If the Senate decides this question in my favor, it 
will put it in my power to resign, which I will do. So, in either event, I get 
clear of this miserable office. I would not continue to hold office under Gov- 
ernor Owsley. His name shall not be on a paper to contaminate my pocket. 
To stay in the secretary's office the residue of his time, and be associated 
with him and his minions is more than I can endure. If I am to die, I had 
rather be thrown into the lion's den and torn to pieces, than be stung to death 
by gnats, mosquitoes, and yellow-jackets. 

"Mr. Mitchell said, in his evidence, that I opposed some of the gov- 
ernor's nominations and measures. If he means that I opposed his nomina- 
tions after they were made, I deny it. As to his measures, I said but little 



THE OWSLEY SPEECH. 



445 



about them. I saw no system in his measures, but to hunt offi< es and em 

ment for his relations. I know what Mr. Mitchell alludes to— the report, 1 
suppose, I had the honor, in obedience to a resolution of both Houses, to 
make to the Legislature last session. In that report 1 recommended the aboli- 
tion of the office of first auditor. His salary is twelve hundred and fifty dollars 
a year; the office expenses about three hundred dollars a year; making fif- 
teen hundred and fifty dollars. And, also, the abolition of the i lerk's offi< e 
to the commissioners of the sinking fund. Theclerk's salary is five hun< 
dollars a year, and office expenses about fifty dollars a year. The twoofl 
cost the State now about twenty-one hundred dollars. Throw the busii 
of those two offices into the second auditor's office. It would require but 
an additional clerk, at a salary of five hundred dollars. By the measure 
I recommended, the State would save sixteen hundred dollars a year, and the 
fiscal and financial concerns and business of the State much simplified. It is 
plain why the measure was not acceptable to the governor. It touched the 
salary of Mr. Bodley and the ' duke,' two members of the governor^ family. 
There is very little business to do in the first auditor's office, and the clerk of 
the commissioners of the sinking fund, I do not believe, has more than one 
hour's work a week upon an average. It mattered not how wise the measure 
of abolishing those two useless offices; yet it would not he relished by the 
governor, because his family would feel it. 

"I saw from the governor's message a proposition to abolish the board 
of internal improvement. I knew that would injure the whole system. 
The message said Governor Metcalfe wanted to resign. I solicited him not 
to resign. He said his situation was an uneasy one. I thought he alluded 
to some persons finding fault with him. However, he promised me not to 
resign, and has not done it. I will ask you, Mr. Chairman, when I was 
called on by the Legislature for a system of revenue, if that did not embrace 
retrenchment, as well as taxation, and if I would not have been faithles 
the high trust reposed in me by the Legislature if I had shrunk from the 
performance of that duty, for fear of offending the governor, the 'duke,' 
and his father-in-law. Mr. Bodley ? 

" I will ask Governor Owsley if he did not, this winter four yeai 
as I have stated, promise me, if elected governor, he would not know the 
politics of any applicant for office, and if qualification alone would not 
be the test? I will demand of him. when you twice appointed 
for the upper district, could you find no lawyer there? and if uld. 

was it not your duty to select a judge who lived in that district ? I will 
answer those questions for the governor. You could have found eminent 
lawyers, residents in that district; and if you could, you should have 
appointed one of them. But the governor has a further answer, which he 
will give himself — they were Democrats, and voted for Butler. When offi- 
cers were appointed to command our volunteers, last summer, could you 



446 BEN HARDIN. 

not, governor, have found a Democrat qualified to fill some office as high as 
a colonel or major? You will answer no. I say you could have found 
many who, in the language of Lord Byron, ' are valorous and sage.' The 
governor can not find one fit lor Commonwealth's Attorney. All the pledges 
1 made for the governor, when a candidate — and I made them by his 
authority, in a hundred speeches — are to remain unredeemed. 

" 1 have, Mr. Chairman, frequently contemplated the vanities of this 
vain world — its pomp and show. I have imagined to myself the proud 
emperor of all the Russias ; how proud and arrogant he was ; yet not more 
so than a little petty constable strutting about with his saddle-bags on his 
arm. I have imagined to myself Bonaparte, the day after a celebrated bat- 
tle — such as Austerlitz, Jena, and Friedland — reviewing his mighty army 
and distributing honors on the battlefield. Then I have looked upon Gov- 
ernor Owsley in the after part of the day, when His Grace would put on his 
table a Tribune, with the articles marked that praised and extolled him to 
the sky, all made up to order in the secretary's office by the 'duke,' and 
sent to Danville for publication. I have seen him read them and smile, and 
smile and read again and again. At last, toward night, he would rise from 
his chair, fold his cloak around himself, and step out of the office. His 
Grace would follow him and soon overtake him, get a foot or two in advance, 
look around and up in his face, uttering, I have no doubt, about these 
words, or something like them : ' You are' a distinguished Whig ; the breath 
of thy nostrils consumeth thy enemies like a devouring flame a dry stubble.' 
The governor's steps would be measured, ' like a wounded snake as it drags 
its slow length along.' They would prolong the walk to the palace as much 
as possible, that the common people, the vulgar crowd, might gaze at them, 
and say to themselves, ' But behold the wonderful men !' How near are the 
ridiculous and sublime to each other ! But behold Bonaparte and his proud 
marshals prancing over the bloody fields of battle. Then look on Governor 
Owsley, when going from the secretary's office to the palace, and his little 
ill-shaped Grace, the Duke of Buckingham, by his side. How great is the 
folly of man ! 

" Mr. Chairman, I have a few more remarks to make, and then, for the 
present, I shall say no more until I hear from Mr. Kinkead. I have been 
a Whig according to the common acceptation of the term, and still firmly 
believe in the great principle that the labor of America must be protected 
from the pauper labor of starving Europe. I have served the Whig party 
for eighteen years. I lack only two years to make the number Jacob served 
Laban. I have fought the Whig battles everywhere— in the Senate of this 
State, in Congress, and all over this State — as you all know. Whenever the 
Whig drum tapped to fall into ranks I was there. In calling the roll, when 
my name was called, I answered, here am I, ready to do your bidding, as 
far as a gentleman can do. If the Whigs said, ride over the State and speak 



THE OWSLEY SPEECH. 






to the people, that they may hear our principles discussed, be< ome i 

and be of our party, I did so; and never hesitated one moment. 
behold! what is my reward? A man who professed to be .1 Wh rnor 

is persecuting me and speaking evil of me, most unjustly. He uevei 
the Whig party good, but much evil; and, as St. Paul said of A.lexand< r, the 
coppersmith, ' may the Lord reward him according to his works.' 11 
been a vile and putrefying sore on the Whigs; but next August com< 
he will scab off from the Whig party, and that will be an end of him. 1 1 
political sun will then set — nevermore again to rise. In the midst of all my 
troubles and difficulties, I appeal to the generosity and magnanimity of the 
Democratic party, to come to the rescue and show me fair play. That is all 
I want. I know the Democrats have no personal prejudi* es against me. In 
all our political conflicts, I have treated them as noble, virtuous, high-minded, 
and honorable men — zealous and truediearted — and well they deserved su< h 
treatment. In that way all great parties ought to treat each other. I 
are the same people — have the same interest and pursuing the same object — 
the welfare and happiness of the people, and only differ as to the best mode 
to obtain them. 

" I do not make the present remarks to ingratiate myself with Democi 
to answer my present purpose. I have uttered the same sentiments upon a 
great many occasions heretofore. I have, in our conflicts, fought them fair, 
and so have they fought me. Foot to foot and eye to eye opposed. We have 
dealt each in the war of words many hard blows — all for the good of our 
respective parties, and not out of malice. I have never scrupled to do the 
Democratic party justice. I have not found fault, as some Whigs have .lone, 
with the administration for the present war. In the management of that war 
much praise, I think, is due the administration. The question was fairly put 
to the American people in the presidential election, between Mr. Polk ami 
Mr. Clay, whether Texas should be annexed or not ? I was in that election. 
as all Kentucky knows, for Mr. Clay and against annexation. 1 said in my 
speeches on that occasion, every time I addressed the people, it we am 
Texas to the United States, we annexed Texas with the limits and bounda- 
ries as the Texan Congress claimed— that is, to the Rio Grande ; and that 
amounted to a pledge of national faith to contend for it as Texas claimed to 
hold. The people of the United States elected Mr. Polk. That eta 
was decisive of the question. Congress knew what the public will was. and 
in obedience to that— upon the true principles of a republic, that the wil 
the people should govern— passed the act annexing Texas. What wa 
Polk bound to do? He knew the will of the people and Congres: 
bound to obey their will. How could that be done ? In no other w.n t 
to take possession of the country. That possession could only be 
a military force, and he was bound to use the necessarv force. Thes 
ions I expressed last summer was a year ago, when I told the only son I had 



448 BEN HARDIN. 

left alive, if he wanted to see war and know it, and for the war to know 
him, now was the time to join the army. That Mr. Polk was obliged to send 
our army to the Rio Grande, and then the Mexicans would fight or cease to 
be a nation. My son commenced his preparations in August, 1845 ; left in 
September of that year, and there he has been ever since. 

" We are not to forget, Mr. Chairman, that a republic never has a large 
army in time of peace. It is a government of the people's own choice, 
and a large army is not required to compel obedience to the laws. All 
other governments are governments of the few, controlling and oppressing 
the many. Such governments require a large army in times of peace. The 
regular army of Russia amounts to about one million of men ; Austria, four 
hundred thousand ; Prussia, two hundred and fifty thousand ; France, four 
hundred thousand, and Great Britain at least two hundred and fifty thou- 
sand. When these governments choose to go to war, they are ready in a 
moment. 

" A republic, such as the United States, when she goes to war, as we did 
in the late war with Great Britain, our army has to be made and created 
after the war commences. But when another nation goes to war with us, 
as Mexico did, we can make no preparation until the commencement of the 
war. The very form of our government forbids. The first gun that was 
fired, the first blood that was shed in this war, was Avar itself. That was the 
act of Mexico. There was no alternative left for the administration but to 
fight, and create an army at the same time. 

" Last May, the war commenced, near the mouth of the Rio Grande — 
three thousand miles from the seat of our government. This is now the 
13th of January — about eight months. What has the administration done 
since then, up to this time? The acts of the administration challenge our 
praise. They display vigor, activity, and energy in the execution of the 
plans of the government, which plans are formed with judgment and 
good sense. I mean common sense, as contradistinguished from learned 
book sense. 

"To prove the truth of what I have said, let us take a brief and rapid 
survey of the operations of the war, and what has been achieved. We have 
sent part of our army into Upper California, a distance by land of four 
thousand miles ; another party went by water, a distance of twelve thou- 
sand miles. We have conquered and now got possession of that country — 
a country that will measure at least four hundred and fifty thousand square 
miles. Another part of our army has been sent through a desert wilderness 
one thousand miles. That part has conquered New Mexico. We now pos- 
sess it. We have conquered all the disputed country east of the Rio Grande 
— not less than one hundred and fifty thousand square miles. The extent 
of our conquest on the west side of the Rio Grande, from all the informa- 
tion I can obtain, can not be less than two hundred thousand square miles. 



THE OWSLEY SPEECH. 






One-half of the whole of Mexico is conquered and now po ! b) the 

troops of the United States. Three desperate battles have been foughl 
splendid victories achieved. One of them has no parallel in the ann; I 
either ancient or modern history. All this has been done and an arm) 
ated, within the short space of eight months. There is 00 blame sin. . the 
presidential election. All has been done since then in obedience to the 
public will — and well done. I am not for refusing either nun or in 
the administration; but I will, with my feeble voice, encourage them t<> 
prosecute the war with all our power, until we conquer peace in the 
Mexico itself; for there it must be conquered. The American ch 
must not suffer now in the eyes of the world, by withdrawing to tin 
side of the Rio Grande, and adopting a defensive war. The march of our 
armies must be onward, or the moral power given to our troops by the three 
great victories gained, will be lost. 

"The opposition to the war says it will cost us blood and treasure. Be 
it so. When we are insulted and attacked, are we nol to fight ? Shall we 
permit the honor of the United States to be tarnished because it may < ost us 
blood and money? I answer, no. What is fifty millions compared with the 
renown we have won ? Nothing. 

" Blood has been shed I know. Our officers and men have been prodig 
of their lives; but we have, and their relations have, the melancholy consola- 
tion to know that they died in a blaze of fire upon the fields of their ub >r\ . 
What did the last war with Great Britain cost the United States? Heavy 
expenses and disbursements were made during the war. Our funded public 
debt increased from about thirty-nine millions to one hundred and twenty- 
three millions, besides a floating debt, not funded, of near fifty millions. It 
may be asked, what did we gain equal to the money expended and blood 
shed? I answer, we gained a great deal. We told to our own people we would 
not be insulted. We told the same to the nations of this earth. We assured 
our own people that they could fight well and courageously upon the o 
and the land. The same great tale we told to the crowned heads of E 
And, above all things, we informed the world that we could fight throug 
bloody and tremendous war with the most powerful nation on earth, and 
when it was - over, return to a peace establishment again, which gave the lie 
to the predictions of the kings of Europe. 

"What has Kentucky gained by this war? She has added honors to her 
great reputation, heretofore won in many a bloody field, where heroes fought 
and contended — man with man — as we had to do in our desperate conflu ts 
with the Indians. Kentucky is a noble State— famed for valor, without b 
ing— famed for courage, without rashness or temerity. Her sons are always 
ready for the fight, and rush to the field of battle, where they never falter in 
the hour of danger, but can look death in the face without turning pale. 
Major Barbour, who bravely dared and nobly died at Monterey, was .1 Ken 

29 



450 



BEX HARDIN. 



tuckian ; so is McClung ; so is Butler ; so is Taylor. The reputation of 
Kentucky for orators in Congress and heroes in battle is known to the world. 
Her glory is seen by the people of this whole earth — bright shining as the 
sun ; but unlike the sun, Kentucky's renown and glory have no night. 

" I am not one of those, when my friend or nation is fighting, to coolly 
look on, and then stop to inquire who is in the right, when the battle is rag- 
ing and blood is pouring out at every pore. No, sir ; I will see the war over 
first, and then, perhaps, I may inquire. I will never quench the fiery cour- 
age of my friends or my nation by saying you or we are in the wrong in this 
affair. No ; I will shout or hurrah for him or them, and to nerve the arm that 
is doing battle, declare he or we are in the right, and even if the oath is not 
warranted by the fact, as Sterne said with Uncle Toby, when he swore, the 
accusing angel will shed a tear in the book and blot it out forever. 

"Mr. Chairman, I regret that I have digressed so far from the subject 
before the committee. I have a word or two more to say, and then I have 
done. 

"I appeal to my Whig friends and associates to resist the power and 
influence of the administration. " Do not give me up as the cowardly judges 
gave up Admiral Byng, in the reign of George II., to satisfy the clamor of a 
weak and feeble administration ; or, as the judges did Socrates, in Athens ; 
or, as Pilate did our Saviour, to appease the clamor of the Jews. Show more 
moral firmness — more courage. ( Let Governor Owsley, and his little, con- 
temptible party, clamor as much as they choose. ) I trust, and confidently 
hope, that both Whigs and Democrats will unite' now, for the first time for 
years, and save me, and rescue my character from this most groundless, 
oppressive, and cruel persecution.^ I pray that the God of Meshach, Sha- 
drach, and Abednego, who walked with them in the fiery furnace, and would 
not let a hair of their heads be singed, will now walk with me — for He is 
my God, also — and, in passing over this fiery ordeal, will not let the soles of 
my feet be scorched, or one of my old grey hairs be singed. 

" Mr. Chairman, I have been so worried and worn out by the persecu- 
tions of Governor Owsley, and his minions who flutter around him, that my 
feelings are so desperate and reckless that, like Logan, the Indian chief, I 
would not turn on my heel to save my life." 

The following is the answer of Mr. Hardin, addressed to the com- 
mittee on executive affairs, on the 16th of January, 1847, m tne 
Representatives' chamber, to a speech made by George B. Kinkead, 
on the 14th and 15th of January, 1847, before the same committee, 
upon the subject of the nomination of George B. Kinkead to be secre- 
tary of State, and the memorial of Mr. Hardin claiming the same office. 

" Mr. Chairman : Before I reply to Mr. Kinkead, I beg the permission 
of the committee to state that the Morning Courier, published at Louisville, 



THE OWSLEY SPEECH. 



45' 



on the 8th of last September, has been sent here, through the postoffii 
laid on the tables of the senators and representatives, since I closed my 
opening speech, that contains an article filled with abuse and scurrility 
myself. How it came into the post-office, I can not tell, or who sent it. I 
know such a number of copies of that paper have been kept prepared 
the present trial, and the time selected to lay them on the tables of the mem 
bers of the Legislature, to suit exactly the crisis of the trial we are now .it. 
My speech was ended, and then, to take me by surprise, and prevent an 
answer to the infamous falsehoods contained in that paper, was the object to 
be attained. The piece in the Danville Tribune was written by Mr. Mitch- 
ell the day the governor attempted to remove me — by the governor's ad 
and directions, I have no doubt — sent to Danville, and there published, came 
back here — then the vile libel attached to it, as a commentary on it by Mr. 
Mitchell and the governor, and sent to the Courier at Louisville t<>r pub 
tion; then some two hundred copies of the paper procured by the same 
individuals, and kept until now, to be laid on the tables of the members. 
The only part of the article I allude to and shall notice is, that my frie 
with my privity and consent, bargained with the friends of Governor < I 
ley, that if the governor would discontinue his contemplated movement 
against me in the Senate, last session, that, at the end of the session, I would 
resign. I have stated, and now repeat it, that the statement is utterly false, 
from beginning to end. I will further remark that such falsehoods as are 
contained in the article in the Courier, to which I have referred, are only i 
small part of what I have endured from Mr. Mitchell and the governor, for 
about one year and a half; and, not content with abusing me, since this trial 
commenced, have assailed some of the members of this committee, to deter 
them from doing me justice and giving me a fair trial. I have no fears 
that score. 

" Mr. Kinkead must have misunderstood me as to what I said about ('. • 
ernor Metcalfe complaining that Governo/ Owsley assailed him in his man- 
agement of the board of internal improvement. I did not intend to< onvq 
any such idea. It was this: that some 0f the people (of Frankfort. I sup- 
posed), were finding fault with him. I did not intimate that it w.i I rnor 
Owsley nor did I say so in my first speech. I consider Governor Metcalfe 
a first-rate man at all points, and if a better has ever lived since the da] 
the Apostles, I have never read of him or seen him. 

"Mr. Kinkead has also misunderstood me in reference to wli.it I -aid 
about what passed at Colonel Davidson's dinner-table last winter. The i 
versation, in its character, had no appeafiance on the part of J 
son to be a tale-bearer or mischief-maker. It was casual and entirely 
dental. It did, in fact, though, prevent me from resigning at the end of 
last session, as I have already stated, and thereby prevented my en 
from ruining me, by publishing that I had bought off the prosecution from 



452 



BEN HARDIN. 



the fear of being convicted — and the price given was my resignation. 
Although such a slander would have been groundless, yet my resignation 
would have been conclusive proof of the fact. Judge Robertson has ren- 
dered me great service by the accidental remark, and I am under obligations 
to him for it. 

•' Mr. Kinkead has thought it necessary to pronounce a high enconium 
on Governor Owsley — such as able jurist, a great man, a distinguished poli- 
tician, and able statesman, etc. That Judge Owsley is a good case lawyer, 
I readily admit. That he knows the great and fundamental principles of the 
law as a political science the most partial of his friends have never said that 
of him before. But, as Mr. Kinkead is the secretary de facto of Governor 
Owsley, and they both hold to the doctrine that his secretary is to do his 
bidding, I suppose that Governor Owsley directed him to say so, and it may 
go for what it is worth. That he has ever rendered any essential services to 
the party to which he belonged, I deny. When the war raged between the 
Old Court party and the New Court party, while we were all spending our 
time and money, he sat still, drew his salary, and did nothing, either as judge 
or politician. Since the great parties of Whig and Democrat have been war- 
ring with each other, what has he done to aid the Whigs ? Nothing. From 
the time he resigned his office as judge of the Court of Appeals, which was 
about 1828, he practiced law until he was nominated as the Whig candidate 
for governor. Before that time did he ever make a speech or spend a dime 
in the Whig cause ? If he did, no man has ever heard of it. He stayed in 
his law office like a boy in snowy weather watching his bird-trap, with most 
marked attention and assiduity, and while the other Whig lawyers were spend- 
ing their time and money in the Whig cause, he caught much game in his 
trap — and well he took care of it. His great Whig services are all empty 
boastings — no reality in them. 

" Mr. Kinkead complained that I had, in an unwarrantable manner, 
assailed Mr. Mitchell. I have not said of him half what he richly deserved, 
and only said those things which my defense required me, and which his 
evidence and conduct in this whole transaction demanded of me. He has 
been the principal manager in this business from beginning to end. He has 
endeavored to betray me and injure me all he could, although I gave him so 
fine an office without knowing him. At the end of Governor Owsley's 
time, when he would know he could get no further favors from him, he 
would betray him for thirty pieces of silver. Mr. Kinkead says Mr. Mitch- 
ell will work his way in the world. I do not want his ways to interfere with 
me any more, as he has heretofore done ; for I impute a large part of my 
troubles to him. As I said when I first addressed the committee, he studied 
evil more than good. Does Mr. Kinkead expect that I am to stand abuse 
from Governor Owsley and Mr. Mitchell, in the Tribune, Courier, and Rich- 
mond Chronicle, and in all their conversations, and, finally, in the governor's 



THE OWSLEY SPEECH. 

message to the Senate, and fold my arms before me liki ly noth- 

ing? If he expects that, he is mistaken. I will defend myself, and 
fense requires me to invade the country of my enemies, like t 
of the United States is doing in the present war. 

"Mr. Kinkead says Mr. Mitchell has just married a fine and accom- 
plished young lady, the daughter of Harry 1. Bodley. 1 do not doubt the 
fact. I will accord to her all the praise Mr. Kinkead has bestowed on her. 
But, Mr. Chairman, considering the original vocation ol Mr. Mitchell, I 
have done a great deal for him — first made him a clerk, with a salary and 
fees worth eight hundred and sixty-six dollars a year, and at parting with 
him, as a reward for his fidelity to me, and faithful sen i< es, I 
him a patent of nobility ; I have made him the 1 hike of Buckingham ' 1 1 
lady partakes of his elevation, and shares with him his illustrious title with 
all its fresh and blooming honors. But I suppose Mr. Kmke.ul thinks I 
have no family, no kindred, to suffer by my abasement, if the ' duke' and 
Governor Owsley succeed against me. Those men have injured me much, 
already. When I parted with my family for this place, the Sundaj after 
Christmas, I have no doubt they would have experienced less heartfelt 
anguish, if they had seen me start for Mexico, not to return until the war 
was ended ; because, if I returned, I would return with honor. But when I 
started here they knew, vanquished or victorious, I would be disgra< ed by a 
conquest with Mr. Mitchell and the governor. Ajax, when contending with 
Ulysses for the armor of Achilles, before the Grecian generals, said if he 
won the armor he was still disgraced by the contest with Ulyss* 

" Mr. Chairman, Mr. Kinkead has been, since the commencement of the 
investigation of this cause, until this moment, in the daily — nay. hourly — 
communication with Governor Owsley. I consider the defense made in the 
circuit court to my motion for a mandamus, the defense of Governor I 
ley. The defense here is the governor's defense. I shall so consider it, 
and hold him responsible for all the doctrines advanced by Mr. Kinkead. 

"The second Monday in October last I moved the judge of the Franklin 
Circuit Court for a mandamus to the second auditor of publi< 
compel him to issue me a warrant on the public treasurer for my qui 
salary. He offered me a warrant for all the time but twenty nine days. I 
refused to take the warrant in that way. I wanted to try the question whether 
the governor has the power to remove me as secretary. The rule wa 
nisi, returnable next morning. The auditor made his return : he admitted 
had refused to issue the warrant for the last twenty-nine da) - 
and assigned as a reason that the governor had officially notified 1 
removed me from office. I pressed the court to take up the motion 
Tuesday. The attorney-general, after consulting the governor. I pr 
asked until Wednesday. On that day I urged a hearing. Mr. Ki 
asked until Friday. The attorney-general said he could not be he: 



454 BEN HARDIN. 

day, nor, I think he said, on the Saturday after. The court put it off until 
the third Monday in October, 1S46. I was compelled to leave Frankfort on 
the Saturday before for Lebanon. The circuit court of Marion county was 
in session there, and I was, on account of my business in that court, com- 
pelled to leave Frankfort. I employed Messrs. Harlan and Stevenson to 
plead my cause for a mandamus upon the auditor to issue me the warrant, 
which they did with great zeal and ability, and with their efforts on that occa- 
sion I am much pleased. Their arguments are published and from their pub- 
lished speeches I collect the history of the cause in the Franklin Circuit Court 
after I left Frankfort. Governor Owsley, by the attorney-general, objected 
first to the jurisdiction of the court; in the next place, the court could not 
go behind the entry on the executive journal, and inquire whether the gov- 
ernor had a right to remove me or not ; nor could the court inquire into the 
truth or falsehood of the charges made against me by the governor in his 
order of removal ; that the question into the truth of the charges he pre- 
ferred against me could alone be tried by the Senate. No part of my proof 
was heard before the court. The only questions argued were the preliminary 
points I have stated. The questions read in these words : 



a i 



First : Whether there may be such a failure, refusal, and willful neg- 
lect to reside at the seat of government and perform the duties of secretary 
of State, as to constitute an abandonment of the office, and consequently a 
vacancy in said office ? And, if so, 

" '■Second: Whether the court can inquire whether such case has hap- 
pened, or whether it must be decided exclusively by the governor and the 
Senate.' 

" The argument closed on Friday evening. The court has the cause yet 
under advisement. 

"The governor has brought me here and has exhibited a long catalogue of 
charges and specifications against me. What does he now say ? That I can 
not go into the truth or falsehood of his charges against me in the Senate. It 
is a question alone for the courts of justice. That the Senate can not settle 
the question. What a deplorable condition am I in. If I go to the courts, 
then he says the courts have no jurisdiction; it is the Senate. If I meet 
him in the Senate, then, says the governor, the Senate has no jurisdiction ; 
it is the courts. I pursue justice and my rights to the courts ; I can not get 
it there. I then fly to the Senate ; if it is denied me there, then I can say 
my great rights are taken from me, and that the Constitution and the laws of 
my country afford me no redress. If my great, valuable, and unalienable 
rights are thus taken from me, and no tribunal of my country can try my 
cause, then I will appeal to a generous and magnanimous public to come to 
the rescue. The governor has so much of the quibbling, technical lawyer in. 
him, that when he dies and is arraigned at the bar of heaven, for the deeds 
done in this world, by the accusing angel, in the name of William Owsley, 



THE OWSLEY SPEECH. 









that his vanity and fondnes for his titled dignity of governor and I 
of a special pleader, will induce him to plead in abatement a misnom 
say that he is not William Owsley, but Governor Owslej ; that sii 
1844, by all his acquaintances, neighbors, and especially in his own fai 
he has been called and known by no other name than Governor I I 
That plea will be overruled; there are no titles in heaven. Governoi I I 
and the other proud kings of this earth must come down as low as the beg 
in the streets. The governor will still continue to quibble and plead to the 
jurisdiction, which plea will be overruled ; for the governor will be afraid t<» 
set out in his plea the court that has jurisdiction, lest Radamanthus may be 
compelled to take jurisdiction of his cause by a mandamus from the supi 
to the inferior courts that decide on the souls of the dead. So here, upon 
this earth, I can not get the governor to a fair trial ; one quibble after 
another, one technicality is played off after another. Gentlemen of the < om- 
mittee, I implore you, make the governor come up and fight fair. Say to 
him, are your charges against your constitutional secretary true or fals 
have you the power to dismiss him or not ? 

" Mr. Kinkead's argument, or, rather, the argument of Governor* I \ 
is resolvable into two points: first, he says the Senate can not go behind the 
message of the governor and inquire whether there is such office or not ; and 
whether there is a vacancy or not. Secondly, that the governor has the 
power to decide on an abandonment of the office by the officer; and, also, 
to decide whether or not the officer has not forfeited and vacated his offu e 
for non-user or abuser ; and that the Senate can not inquire into anything 
but the mere qualifications of the nominee ; and, in that inquiry, the Senate 
can not go into the rights of the nominee to hold the office; but his qualifi- 
cations alone to do the business of the office. I will discuss these questions 
in the order in which they are stated, and will avoid, as much as possible, 
the repetition of what I said to you in my speech when I opened this < ause. 

" Mr. Kinkead, in support of the first proposition, say- the government is 
divided into three departments, to-wit : legislative, executive, and judi< 
and that no department has a right to interfere with either of the Other 
departments. As a general principle this is true; but to what department 
does Mr. Kinkead assign the Senate? To each of the departments some 
duties are assigned that belong to another. The courts belong to the judi- 
cial; yet the judges perform executive acts — such as the appointmei 
clerks. The governor belongs to the executive ; vet he has legislative func- 
tions to perform, in approving and signing acts of the General Assembly. 
The House of Representatives belongs properly to the legislative department ; 
yet the House is appointed manager to conduct impeachments. The duties 
of the managers are entirely executive. 

"The Senate does not belong exclusively to anyone of the departments. 
In participating in the making of laws, the Senate is legislative in its func- 



456 BEN HARDIN. 

tions. In the trial of impeachments, it is judicial. When sitting as a court 
of impeachment, the Senators take an oath as judges. When the Senate is 
thus organized, it is the highest judicial tribunal known to the Constitution. 
When co-operating with the governor, in exercising the appointing power, 
the Senate is then in the executive department. I will read to you, gentle- 
men, that part of the Constitution which confers on the Senate executive 
functions on the subject of nominations. It is the ninth section of the third 
article, and reads in these words : 

" 'Section 9. He shall nominate, and by and with the advice and con- 
sent of the Senate, appoint all officers whose offices are established by this 
Constitution, or shall be established by law, and whose appointments are not 
herein otherwise provided for ; provided, that no person shall be so appointed 
to an office within any county who shall not have been a citizen and an inhab- 
itant therein one year next before his appointment, if the county shall have 
been so long erected; but if it shall not have been so long erected, then 
within the limits of the county or counties from which it shall have been 
taken ; provided, also, that the county courts shall be authorized by law to 
appoint inspectors, collectors, and their deputies, surveyors of the highways, 
constables, jailers, and such other inferior officers, whose jurisdiction may 
be confined within the limits of a county.' 

"The committee will perceive, upon the subject of appointments, the 
Senate has executive powers. When a nomination is made by the governor 
to the Senate, the first inquiry for that body to make, is there such an office 
known to the Constitution and laws of Kentucky; and if there be no such 
an office, to let the governor know it by an appropriate resolution. The next 
inquiry the Senate has to make, is, if there be such an office, is it vacant; 
and, in the next place, is the nominee qualified to take and hold the office; 
and, also, is he qualified to perform the duties that appertain to it ? 

" What an absurdity would the government be involved in if the gover- 
nor were to nominate a minister to France. According to Governor Owsley's 
doctrine the Senate can make no inquiry whether Kentucky can send a min- 
ister to a foreign power. The governor alone is to decide on that. The only 
inquiry the Senate can make is, is the nominee qualified to fill the place. 
The Senate decides the nominee is qualified, and so the matter is to end; for 
no minister could go from Kentucky to France. Suppose the governor 
should nominate the ' duke ' as grand chamberlain to the palace, and some 
other minions as grand huntsman and grand falconer. The Senate can make 
no inquiry into the question of whether there be such offices or not. The 
only question, in the governor's opinion, would be their fitness for the office. 
The Senate would be compelled, in one moment, considering the governor 
and his nominees to say that they were all qualified. Suppose the governor 
chooses to nominate a man as constable, or a clerk of the court, although 
these appointments are to be made by their respective courts, yet the Senate 
could not inquire into the facts. These supposed cases are but a small part 



THE OWSLEY SPEECH. 



457 



of the absurdities that the Senate would be compelled to ena< t if th< 
nor is correct in his doctrine— that is, that his nominations u ive; 

that there is such an office as he nominates the man to fill, and thai he alone 
is the judge whether there is or not. Take the governor's positions to he- 
true, to the extent he contends for, then let us inquire, what would l>e the 
result were he to nominate a man in the place of Chief-Justi 
allege, in the nomination, that Judge Ewing died on a named day ; thai 
while the nomination was in the Senate, and before il was acted on, J 
Ewing would learn what was going on in the Senate, and come to Frankfort 
— stand at the bar of the Senate, and aver he was not dead. Yet the Senate 
is to act upon the fact. He is dead, because the governor has said so in his 
nomination. Mr. Kinkead said that was so plain a case it forms an exi 
tion to the rule laid down by him for the governor. To look at Judge Ewing 
and see he was alive, would be going behind the nomination ; and the only dii 
ference between that and his not coming to Frankfort and staying at home. 
on account of sickness, would be, that in one case the fact would b 
tained by the senators themselves, and the other, would be ascertained by 
witnesses of undoubted credit. The principle is exactly the same. 

"Suppose the governor wanted to get clear of a judge, >>r wanted his 
place for an Owsley, Mitchell, Kinkead, or a Bodley — and should nominate 
his successor, and allege that he had resigned, moved out of the Stat' 
accepted an incompatible office ; if the Senate could not inquire into the f.v t. 
whether the office was vacant or not, we would have two officers when there 
would be but one office, and the Constitution allowed of one office. 
not any man see, from such monstrous doctrine, the difficulties and absurd- 
ities in which the State government would be involved ? We would be* i »me a 
subject of ridicule among the other States, and all the sensible men everywhere 
would laugh at us. The Senate has the same power to inquire into all facts 
connected with the subject of the nomination that the governor ha-. 1 
of the appointing powers, to-wit : the governor and Senate, is to inquire into 
all the facts connected with the appointment. There is no fact that tin 
ernor can inquire into, that the Senate can not. I understand Mr. Kinl 
to say, in answer to a question put to him by Mr. butler, one of the i 
mittee, that the Senate can not inquire whether the nominee was an alien or 
not, although, as an alien, he could not hold the office until naturalized. It 
is certainly not necessary to give any answer to such doctrine. It i^ - 
tainable that no man will require it to be answered. 

"Governor Desha nominated Arthur L. Campbell to be surveyor in the 
place of Colonel Anderson, deceased, for the military lands wesl of tb 
nessee. The Senate decided there was no such office; that th< 
Hickman, Graves, Calloway, and McCracken had. eat h, a count) sun 
that Colonel Anderson never filled an office; that he was sun 
district of country by private contract with the board of i iffi 



458 BEN HARDIN. 

sion went behind the nomination. The Senate did not advise and consent 
to the nomination of Campbell, although he was well qualified to fill the office, 
if there had been such a one. 

"Again: Governor Desha nominated Preston S. Loughborough to be 
adjutant-general, in the place of Oliver G. Waggener, removed to Tennes- 
see. The Senate inquired into the fact, whether Waggener had moved to 
Tennessee or not. Upon a full investigation of the facts, the Senate decided 
that Waggener had not moved, and that he was yet in office, and rejected the 
nomination of Mr. Loughborough. 

" In 1833, Governor Breathitt nominated a Mr. Bruce to be Common- 
wealth's attorney, and in the nomination the governor stated that Mr. Fox's 
commission had expired. A committee was appointed to investigate the case. 
Fox alleged his commission had not expired. The committee made a report 
that there was no vacancy. The report was confirmed by the Senate. Gov- 
ernor Owsley was then a senator, and voted for the report. Governor Ows- 
ley then voted that the Senate could go behind the nomination. The Court 
of Appeals, in 1st Dana, in a case between Fox and Bruce, confirmed what 
the Senate did. I will read you, gentlemen, from the Senate journal, 1832, 
page 400- r-2, the report and vote of the Senate ; it reads in these words : 

" ' Mr. Hardin, from the committee to whom was referred the nomina- 
tions for attorney-general and Commonwealth's attorneys, made the follow- 
ing report, in part, viz : 

" 'The select committee to whom was referred the nomination of the 
attorney-general and district attorneys, has had the same under consideration, 
and report, in part, viz : 

" 'As to the attorney-general, the Senate do advise and consent to the 
appointment of Charles S. Morehead, to be attorney-general for this Com- 
monwealth. 

" 'The Senate do advise and consent to the appointment of William B. 
Booker, to be attorney for the Commonwealth, in the ninth judicial district, 
in the place of James Harlan, resigned. 

" ' As it respects the other nominations of district attorneys, except Willis 
and Holt, the committee, in their inquiries into that subject, find that all 
the nominees, except Horatio Bruce and James S. Henderson, have been 
regularly commissioned, by and with the advice and consent of the Senate, 
Commonwealth's attorneys for the judicial districts respectively for which 
they are now nominated, and that none of them has resigned. That in the 
district to which Mr. Bruce is nominated, that Fountain T. Fox was regu- 
larly appointed to said office, that he is still alive, has not removed out of 
the district, or resigned. That in the district to which Mr. Henderson is 
nominated as Commonwealth's attorney, that Franklin Ballinger, by and with 
the advice and consent of the Senate, was duly commissioned attorney for 
the Commonwealth, and that he is still living, has not removed out of the 
district, or resigned his office. 

' ' ' The first question presented for the consideration of the committee is, 
whether there is a vacancy in the offices above alluded to. And if there be 
no vacancy, then it is unnecessary to inquire into the qualifications of the 
nominees. 



THE OWSLEY SPEECH. 

"'Those Commonwealth's attorneys were appointed under an 
Assembly approved the 23d day of January, 1829, whi< h law has been 1 
tinned by subsequent enactments, and not permitted to expire, and thai 
present session again continued, for two years Longer, before the preceding 
law expired. The question is, under these fa< is, are those attorneys 01 
office? The ninth article of the Constitution, twelfth se< tion, contains the 
following provisions: "The attorney-general, and other attorneys of this 
Commonwealth, who receive a fixed annual salan from the public try, 

judges and clerks of courts, justices of the peace, surveyors ol lands, and all 
commissioned militia officers, shall hold their respective offices during good 
behavior and the continuance of their respective courts, under except! 
contained in this Constitution." When we examine tins section, we will 
clearly perceive that the word "court" is used as applicable to jud{ 
clerks, etc., and, as to attorneys, the additional words. •• and continuant e ol 
the office," is fairly to be inferred; that is, such attorneys as their offii 
created by law, and not by the Constitution, and who receive an annual fixed 
salary out of the,public treasury. An attorney who receives a fixed annual 
salary out of the public treasury, and who is commissioned by the goven 
by and with the advice and consent of the Senate, what is the tenure by 
which he holds his office, under the above section of the Constitution ? The 
answer is — good behavior, the continuance of the court, and the continuant e 
of the office. Those gentlemen have not misbehaved, the court has been 
continued, and so has been the office, for it has not been permitted to expire. 
For, although the law was enacted but for two years, the same power (to-wit, 
the Legislature), which enacted it for two years, had a right either to permit 
it to expire or to continue it longer at its will and pleasure, before it did 
expire ; for, where is the substantial difference in creating the office for two 
years, or four years, or permanently? If the same power that created it 
continued it, and did not permit it to expire, there is no perceivable differ- 
ence ; because the office continued all the time, and. by the Constitution, if 
the incumbents behaved well, the court was not abolished, and the offi< e was 
continued — they were in office. 

" 'No one will pretend to contend that any legislative enactment made in 
pursuance of the Constitution, can put any limitations, conditions, or restri< - 
tions upon the tenure of office repugnant to the Constitution. It is contended 
by the governor that the law being for but two years, although the sami 
continued before the two years expired, that the appointment was thereby 
limited to two years. With great deference to the high authority for this 
opinion, it is certainly more plausible than substantial ; because the tenure 
of office, as has been before observed, is fixed by the Constitution, and 
laws in contravention of that are void; and even if the commission 1 
should have improvidently issued for two years, the commission was 
and valid, and the limitation void. 

" ' The committee conceive themselves not only sustained by I 
tution, but by the unanimous opinion of every governor and se< retarj 
the present governor. When the law first passed in 1813, Shelby wa 
ernor, and Martin D. Hardin, secretary ; Slaughter was acting governor 
and John Pope his secretarv ; Adair succeeded him. and Breckini 
secretary; next Desha, and Barry his secretary ; next Metcalfe, and ( ritten- 
den his secretary ; by each of these governors and their secretan 
expositions given to the Constitution and the law. which the commit! 
give. It has been incidentally sanctioned by every court in Renin, ky ; tor 



460 BEX HARDIN. 

the law creating the office of Commonwealth's attorneys was enacted first in 
1813, and continued by regular enactments before the preceding act expired, 
except in two or three instances, from that time to the present ; and when 
continued before the preceding one expired, no governor ever before con- 
sidered them out of office, and the courts recognized them as public prose- 
cutors without a new commission ; and thus some of the attorneys were con- 
tinued in office upon the first commission for near ten years. These exposi- 
tions by former governors, if there were any doubts, ought to be considered 
as having settled the question. The case of Stonestreet and Harrison, in 5 
Littell, and the analogous decisions in Great Britain upon the statute of 
William and Mary, go to support the opinion of the committee; wherefore, 

" ' Resolved, That in the first judicial district, second, third, fourth, sixth, 
seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and six- 
teenth there is no vacancy. 

"'The question being taken on concurring in the said report, it was 
decided in the affirmative. 

" ' The yeas and nays being required thereon, by Messrs. Clark and Har- 
din, were as follows, viz : 

" ' Yeas — Messrs. Beatty, Bibb, Boyd, Churchill, Conner, Cunningham, 
Fleming, George, Gholson, Griffith, Hardin, Murrell, H. Owsley, W. Ows- 
ley, Payne, Taylor, Thompson, Thornton, Wickliffe — 19. 

" ' Nays — Messrs. Beaseman, Brown, Clark, Dejarnatt, Dougherty, Guth- 
rie, Harris, James, Murray, Parks, Rodman, Sisk, Wingate, Wood — 14. 

" I will ask, why did the governor exhibit his charges against me if I were 
not to be at liberty to contest them ? The governor's charges I have dis- 
proved, as I had a right to do. Common justice would give me that right ; 
the genius of our government gives me that right. What answer does Mr. 
Kinkead make to the proof I have introduced, showing all the charges of the 
governor to be untrue? His answer is, that such proof has nothing more 
to do with the case than the constitution of Lapland. When I am charged 
with high crimes and misdemeanors by the governor, in his message to the 
Senate, I am mocked by the secretary, de facto, of the -governor, who speaks 
only what the governor tells him, that although I disprove all he has charged 
me with, and that his accusations are false and malicious, yet such proof has 
nothing more to do with the case than the constitution of Lapland. I was, 
by Mr. Kinkead, tantalized with that expression four or five times. Does the 
governor know where Lapland is? Does he know it is a cold, bleak coun- 
try north of Sweden ? That it is the region of eternal snow, and in which 
the people are dwarfs — have no government — live on the seals they can take ? 
Some naturalists suppose the monkeys and baboons of Africa, and some the 
ourang-outang of the Island of Borneo, and some the Laplanders, the great 
connecting link between man and beast. The governor, I suppose, thought 
that Lapland was some great island in the South Sea, or some great and pop- 
ulous kingdom on the east coast of Africa, between the mouth of the Red 
Sea and the Cape of Good Hope. 

''The whole of Governor Owsley's high-toned doctrine about abandon- 
ment, and his right and power to declare a vacancy, I have spoken of before. 



THE OWSLEY SPEECH. 

I will, however, remark that his doctrine of abandonment and 
vacancy repeals the clause of the Constitution that prescribes the trial 
impeachment, and renders it a dead letter; because th mors n 

trine dispenses with the whole of it. If h< can de< lare what he pi 
vacation of office, or an abandonment, then there is oothing to try. I 
the committee to simplify the two positions of the governor, that the Senate 
can not dispute his word when he says there is an offi< .-, or that an offii 
vacant, and that he can declare a vacancy at his will and pleasure, and none 
can gainsay it if he says so. It amounts then, to this, that he has the whole 
government in his hands, and that he has more power than the kin. 
France or queen of Great Britain. His pretensions are so extravagant 
render them harmless and ridiculous. 

"Mr. Kinkead has told you, over and over again, do as you will, the 
governor will disregard what you may do. I do not intend to hold the offi< e 
if you decide in my favor, and he knows it ; hence the blustering, boasting 
language of the governor. Were I disposed to push matters to extremit 
and the Legislature to use the power given to that body by the Constitution, 
the governor's knees would smite together, like Belsha/zar's, before the 
of the session. The king of France dare not say to his Chamber of I tepu- 
ties, 'say what you please, do as you will, I will disregard it.' What kin.; 
of Great Britain, since the abdication of James II., dare hold such language 
to his Parliament as Mr. Kinkead, who represents Governor < >wsley, said to 
you, gentlemen, in his argument ; and he has repeated it several times. The 
kings or queens of Great Britain, since the revolution in 1688, when the 
public voice says, dismiss your majesty's ministers, they are instantly dis- 
missed ; even Wellington, if a minister, has to go out of office if public 
timent says so. That proud nobleman, who has been victor in a hundred 
desperate fields of battle, and who conquered Bonaparte at Waterloo, has to 
submit to public sentiment. When the House of Commons voted lord 
Melville guilty of a misdemeanor in the office of Paymaster-General, I 
III. instantly dismissed him from all his employments, although he thought, 
and so did his prime minister, Mr. Pitt, that he was innocent ; notwithstand- 
ing the opinion of the king and his minister, yet the king declared that the 
will of the nation, as expressed, must be obeyed. 

" Governor Owsley's menaces of bullying the Legislature, are just about 
as ridiculous as if the minister of Hesse Homburg, at some Congress of the 
ministers of Russia, Prussia, Austria, France, and Great Britain, with all 
imaginable pomp and self-consequence, was to rise up and protest against 
some measure of great policy these mighty powers were about to adopt, and 
swear, if they did not resist, that his master would brush their em]. ires and 
kingdoms from the face of the earth. 

" Mr. Kinkead has indulged in a number of arguments, such as Governor 
Owsley's supposed cases in his message. There can be no neci 



462 BEN HARDIN. 

respond to extravagant suppositions. Those cases never happened, and no 
general rule can be established from extreme cases, not that such cases ever 
did occur, but only supposed. We have had the old rebellion and insurrection 
cases paraded, like ghosts, to frighten us ; and the supposition that I would 
not attest the official acts of the governor. Not one word of all these imag- 
inary cases is true. Mr. Kinkead, after these wild and extravagant con- 
jectures says, ' is there no remedy for all these ? ' It is time enough to answer 
when these things happen. I will suppose that the governor would not 
approve and sign laws, and refuse to do other official acts ; suppose that 
judges would not act; suppose not an officer in the government would act; 
the result would be, the government would be dissolved. But we are not 
to indulge in such idle and ridiculous suppositions. Suppose, again, and that 
would suit Governor Owsley very well, the people could not govern them- 
selves. Then, I suppose, Governor Owsley would have a right to take pos- 
session, and retain the government, upon the ground and pretext that the 
people were incapable of self-government. That is just the doctrine of Crom- 
well, and Bonaparte, and all tyrants. 

" The political hypothesis of this government is that each public officer, 
from the highest to the lowest, will do his duty ; each one is selected on 
account of his fitness for the office ; his responsibilities are prescribed by the 
Constitution and law. Those who made the Constitution and laws supposed 
those responsibilities sufficient to insure a faithful discharge and performance 
of the duties required of the respective officers. If the responsibilities are 
found not sufficient, then the Legislature must prescribe more and other pen- 
alties. It is not for the governor to take the delinquencies of the officers 
into his hands, and punish in a new and unheard-of manner. Such doctrine 
will end in despotism, and the government of one man. 

" Mr. Kinkead relied on the opinion of Judge Smith, in the Illinois case, 
that I have heretofore read. Judge Smith's opinion was not the opinion of 
the court. Right the opposite was the opinion of the court. But the very 
opinion of Judge Smith, the dissenting judge, supports me in this case. His 
whole opinion is based upon one principle, that the Constitution of Illinois 
does not fix the tenure of the office of secretary of State, neither as to time 
or good behavior. But if it had, then he gave up the question. He relied 
on the opinion of the Supreme Court, in support of his position. I read some 
of the extracts made by Judge Smith (volume II, Scammon's Reports, page 
131), and which read in these words : 

" 'The Constitution is silent with respect to the power of removal from 
office where the tenure is not fixed. It provides that the judges of the 
Supreme and inferior courts shall hold their offices during good behavior; but 
no tenure is fixed for the office of clerks. Congress has, by law, limited the 
term of certain offices to four years, 3 Story, 1790, but expressly providing 
that the officers shall within that time be removable at pleasure, which, of 
course, is without requiring any cause for such removal. The clerks of 



THK OWSLEY SPEECH. 

courts are not included within this law, and there is no express limitation in 
the Constitution or laws of Congress, upon the tenure of i ■ 

" ' All offices the tenure of which is not fixed by the ( institution, or lim- 
ited by law, must be held either during good behavior, or (whi< b is t 
thing in contemplation of law) during the life of the incumbent j ; be 

held at the will and discretion of some department of the governn* 
subject to removal at pleasure.' 

"Mr. Chairman, if, some two hundred years henc< n of learn:' 

like Hume, Robertson, or Gibbon, were to undertake to write the hi 
Kentucky, and were to search the archives of State to collect materials to 
compile his history from, and were he to look over the records of < Governor 
Owsley's administration, he would suppose there were but four great families 
in Kentucky — the Owsleys, Mitchells, Bodle\>. and Kinkeads. There is 
hardly any office of appointment vacant, that some of them do not obtain 
it If a judge is to be appointed for the circuit next the Virginia lit. 
Kinkead gets the appointment, although he does not live nearer the circuit 
than about one hundred and fifty miles. If commissioners are to be 
appointed to settle with the Commissioners of the Sinking Fund and presi- 
dent of the Commonwealth's bank, a Bodley and Kinkead get the appoint- 
ment. If the First Auditor's office becomes vacant, a Bodli the 
appointment. If an assistant secretary is to be appointed, a Mitchell is 
appointed. If a clerk to the Commissioners of the Sinking Fund i> to be 
made, a Mitchell is appointed. A register is to be appointed, an Ow 
gets that — the cousin and son-in-law of the governor. The second clerk in 
the register's office, a very competent man, with a family, is to be turned out 
to make room for young Rhodes, the grandson of the governor, who was 
imported from Danville, and knew nothing of the business of the offu e. 
My little office of secretary of State is to be taken from me, to be given to a 
Kinkead. They are all part and parcel of the same family connection. The 
register is the son-in-law to the governor, and the second clerk his grand 
Boyle Owsley, the son of the governor, married the sister of Harry I. Bod- 
ley and Judge William Bodley, of Vicksburg. Mr. Mitchell is the son-in- 
law of Harry I. Bodley, and George B. Kinkead is the brother-in-law 
Judge Bodley. No man has better studied that text of Scripture, which 
says, " if a man does not provide for his own household, he is worse than an 
infidel," than Judge Owsley. The archives of his administration w 
show that there was one great trial— that of Governor Owsley against ben 
Hardin. 

"Mr. Chairman, let us for a moment cast our eyes upon Europe, and 
look at its history for the last fifty years. There we behold how the great 
rights of the people are sported with, and how they are treated. N m and 
then we see a few examples of noble resistance. When we look at Ku 
there the emperor gives dukedoms, such as Oldenburg, as a marriage portion 
to his daughter. We look at Austria, there dukedoms, such as Mil 



464 BEN HARDIN. 

Modena, and Parma, are given as portions to his children. Let us then cast 
our eyes on Bonaparte, in all his pride and grandeur, and in the zenith of 
his power; we behold the same thing enacted by him on a large scale. 
Kingdoms were given to his brothers and brother-in-law. Westphalia is 
given to Jerome; Naples to Murat, and Spain to Joseph; but the proud 
Spaniards would not submit to be thus ignominiously transferred from their 
lawful king to an upstart stranger. The nations of Europe aided and assisted 
Spain in the glorious war that broke out, with all its horrors. The war raged 
in Spain from Cadiz to the Pyrenees ; the dark battle-cloud rolled over Aus- 
tria — then crossed the Niemen. The storm burst like a deluge on the field 
of Boridino. The next moment Moscow was in flames ! The storm of war 
rolled back, and we saw it hanging over Germany. Shortly after, the can- 
non was heard at Paris ; at last the tragic curtain dropped at Waterloo. The 
next sight that we beheld was Bonaparte at St. Helena, and there by the 
evident hand of Providence, he was perched on the crater of an extin- 
guished volcano — a fit emblem of his own fiery career, and then of his fallen 
greatness and gloomy grandeur. What a moral the Almighty taught the 
world in the final catastrophe of Bonaparte; what a signal punishment 
inflicted on inordinate ambition ! 

" I now tell Governor Owsley, beware how you portion your children and 
your connections with the offices that belong to the people. They will not 
tamely submit; they will rouse up in their majesty and assert their power. 
In monarchies oppressions on the people, when they can bear them no longer, 
are resisted, and revolutions follow, as the history of most of the governments 
of Europe proves. 

"In republics the remedy is a resort to first principles to purify their 
government when inordinate abuses creep in. Power is always stealing 
from the many to the few. The Almighty has told us what to do in such 
a case' by his own example. He sends winds and tides to purify the waters- 
of the sea ; he sends winds, rain, and thunderstorms to purify the air. So a 
convention will purify the foul political atmosphere in Kentucky. That is 
the remedy, and nothing but that will do. We, gentlemen, who are for a con- 
vention ought to rouse up when we look at the high and extravagant claims 
and pretensions of Governor Owsley, and when we see the public offices- 
taken from more deserving men, and given in marriage portions to the gov- 
ernor's daughter, and grandson, and others of the connection. I am tired 
of treading these ways — a remedy and that quickly, must be applied. 

" Mr. Chairman, I have been very illy able to conduct the argument this 
evening. Since I last had the honor to address the committee, which was 
last Wednesday evening, we have heard the most startling news from the seat 
of war in Mexico. We have heard that Santa Anna, with twenty-five thou- 
sand men, is marching on Saltillo, and is about to surround General Worth, 
who had not more than fifteen hundred men to oppose twenty-five thousand;, 



THE OWSLEY SPEECH. 

that an express has been sent after General Taylor, who was on his m 
from Monterey to Victoria ; that he had counterman hedand was moving with 
all speed to join Worth. When their armies are united the number will 
exceed ten thousand men. Since I heard that news, 1 am n mIcss |,\ ,. 
night, my sleep is only broken slumbers. In that situation 1 „,', 
myself that I can see Taylor and his army rushing up the dark valley <<\ the 
Fernando, or some other stream from Monterej to Saltillo; that 
approach Saltillo, the sound of cannon, as it comes booming down the river 
is heard; that Taylor and his men quicken their march; that at last they 
get in sight of the battlefield, when they pause tor a moment, until the m< n 
can take breath, and form. Then, in my imagination, I see them rushing 
into the battle; at this moment my excitement becomes so great that I 
awake. 

"We do not know, Mr. Chairman, what moment we shall hear of a tre- 
mendous battle having been fought. You, Mr. Butler, have a son there ; you, 
Mr. Harris, a nephew; scarcely a family in Frankfort but has some relation 
there. Colonel Davidson a son ; Mr. Crittenden a son ; Mr. Harlan a son ; 
Colonel Heady, of the Senate, a son; I have an only one there. The next 
news from the theater of war may put our families in mourning. But, in the 
midst of this general distress, it is consoling to see with what philosophy the 
governor bears it. He slowly walks from the palace to the secretary's ofl 
and then back to the palace, with stoical firmness that does honor to his i 
lution. Cato, when in Utica, never showed more. He knows none of the 
Owsley family are in danger — they would have been soldiers ' if it had not 
been for those vile guns.' The only danger that the Owsley family is in. is, 
that they may be mashed up in the palace gate in a rush for offices ; and when 
they get them, they can truly say, that they are competent to the emoluments 
thereof. 

" Mr. Kinkead remarked that I seemed to plead for mercy. No. sir, I 
ask no mercy of any person on this earth. 1 appeal to my God alon< 
mercy. I would despise myself if I even felt like asking the pity or ru 
of any human being in this world. I implore the justice of the Senate — nay, 
I demand it. 

" Mr. Chairman, I will say no more. I return this committee my thanks 

for the polite attention they have given me in this argument; and to Mr. 

Kinkead, I will say, that he has deported himself in this case hi, ntle- 

raan ; and should behold the secretary's office, I hope His < .race, the 

may give him a better berth than he has given me." 

I 
APPENDIX. 

"The committee of the Senate, composed of Messrs. Harris, But 
Draffin, Wall, and Thornton, made an able report, accompanied with a • 
lution rejecting the nomination of Mr. Kinkead, upon the ground that 1 

30 



466 BEN HARDIN. 

the secretary of State, and that the governor had no power to turn me out. 
The four first-named gentlemen concurred in the resolution. Two or three 
weeks afterward the Senate, which was composed of thirty-eight members, 
concurred in the report of the committee by a vote of thirty in favor of it 
to eight opposed to it. Within two or three d.ays, I resigned the office of 
secretary, and sent my resignation to the governor, and notified the Senate 
of the fact that I had resigned, and enclosed in my note to the Senate, a 
copy of the resignation I sent to the governor. A few days after that, the 
governor renominated George B. Kinkead, in the place of George B. Kin- 

kead, resigned. 

"What was the motive of the governor in doing so ridiculous an act, I 
can not tell, when the journals of the Senate showed he had been rejected, 
and, of course, had no office to resign. It was like the arrow of a Parthian, 
shot, in full retreat, at the Senate ; but the arm was too feeble to bend the 
bow, and it fell far short of the mark. 

" The reader will perceive in this appendix, the letter of Austin P. Cox, 
and the affidavit of Henry C. Thomas. They are alluded to in the speech. 
Also the accounts of Governor Owsley, for money expended for his own 
convenience, and which he made the public pay. Among the items there 
is one of fifteen dollars, paid the trustees of Frankfort, for water furnished his 
family. He might as well have charged for the coal the family used, or the 
meat they eat. Two thousand four hundred and thirty-one dollars went 
through the Second Auditor's office ; there are fifty dollars more on the 
books of the penitentiary— making two thousand four hundred and eighty- 
one dollars. These sums were drawn out of the public treasury without an 
appropriation made by law, so far as I can find, and right in the teeth of the 
Constitution which says no money shall be drawn out of the public treas- 
ury without an appropriation made by law. I find an appropriation of one 
hundred and fifty-one dollars and forty cents, in favor of Moffett & Co., 
merchants of Frankfort, for a carpet for the palace. Put the whole money 
expended by the governor together, and it will stand thus: 

Money drawn by warrant from the Second Auditor $2,43' °° 

An account against the State at the penitentiary, for a dozen fine chairs for 

the governor 5° °° 

Paid Moffett & Co., for a carpet for the palace I5 1 4° 

Total $2,632 40 

"The accounts are so voluminous that I have thought it advisable to omit 

the publication of them, as it would delay too long the publication of the 

speech. 

" What an economical governor we have, especially when the money goes 

to his use ! 

"BEN HARDIN." 



THE OWSLEY SPEECH. 

"This day Henry C. Thomas made oath before me, a i 
for Franklin county, that he is thirty-eight years ..Id, thai he w 
county of Bullitt, and he has known Ben Hardin ever mix e he i an 1 
During all that time he has practiced law in the Bullitt Cin uil I 
for the last four years this affiant has ridden deputy sheriff; thai 
Hardin has been secretary of State, up to last September, he does Del 
that he has not been at the circuit court of Bullitt more than one-hall of the 
time the court has been in session. That said Hardm sen! for him 
day, to attend the committee, but he was sick and could not attend I 
statement is asked by Mr. Hardin, because he does not know thai h< 
remain in Frankfort until Tuesday next. 

•• ill \i;\ C. 1 HOM \ 

" Subscribed and sworn to by Henry G. Thomas, before the undersign) 
a justice of the peace for Franklin county, this 9th day of fanuarj . 1 

"H. WINGATE, I. / 

"Frankfort, February 8, 1847. 

" Hon. B. Hardin : 

" In reply to your note of to-day, I beg leave to state, that I hav< 
as assistant-secretary for several secretaries of State, viz: Tims. T. Crittenden, 
John J. Crittenden, and William Owsley. Esq., perhaps others whose names 
I do not now recollect. I was ' in the habit, with their knowledf 
ing their names to official papers, in their absence, when attending to law I 
ness, and in their presence,' when in the office. I did all the clerical busi- 
ness while I acted in the capacity of assistant-secretary, and know not that 
my principals ever signed their names to any official paper. 

" Very respectfully, 

"AUSTIN I'. COX 



_j.68 BEN HARDIN. 



CHAPTER XXVII. 

THE CIRCUIT BENCH FOR HALF A CENTURY. 

THE Constitution of Kentucky of 1799 was peculiar in that it 
established a Court of Appeals ; also, county courts, but left the 
Legislature to its discretion as to the creation of intermediate tribu- 
nals. This peculiarity did not result from accident. Prior to 1799, 
general common law and chancery, as well as criminal, jurisdiction, 
was vested in district courts. These courts were held at certain desig- 
nated points in the State, and had local jurisdiction over an extensive 
territory, usually embracing several counties. In view of the scat- 
tered population, it was a very proper arrangement in 1792, but as the 
counties grew more populous and the business of the courts increased, 
district courts, in the opinion of some, became inadequate, as they 
certainly were inconvenient, for the administration of justice. Among 
those having this view was Felix Grundy, who favored the substitu- 
tion of a circuit system, whereby a court should be held in each 
county, with similar functions to those of district courts. As a mem- 
ber of the constitutional convention of 1799, he advocated the estab- 
lishment of circuit courts, but a majority of the delegates opposed 
the proposition. He, nevertheless, succeeded in having the Legisla- 
ture vested with power and authority to establish circuit courts 
wherever it deemed proper. As a member of the Legislature, in 
1802, Mr. Grundy introduced, and by his efforts succeeded in obtain- 
ing the passage through both Houses, of a bill establishing the system 
of circuit courts. The bill having been vetoed by Governor Garrard 
was passed over his objections, and became a law. 

Thus circuit courts were established in the State, substantially as 
they have ever since existed.* These tribunals had general, original, 
criminal, common law, and chancery jurisdiction, substantially com- 
bining the functions of the Common Pleas, Queen's Bench, and Chan- 
cery courts of England. At first two associate judges in each 
county sat with the presiding judge, when he went thither, at each 
term, but after a dozen years these were dispensed with. During the 

* Democratic Review, Vol. III., page 164. 



HOW JUDGES WERE FORMERLY MADE. 

period the office of associate justice existed, it was usually filled by 
non-professional men, who added little else than numb the 

bench. Judge Broadnax, an old-time circuit judge, had great 
tempt for what he regarded as judicial excrescences. While he 
sided, when a question was presented for decision, he would turn to 
his associate on one hand, inquiring in anything but a courteous tone 
and manner: " What do you guess ?" Then, turning to the oth 
" What do you guess?" 

Prior to 1850, circuit judges were appointed by the governor, by 
and with the advice and consent of the State Senate. As at that 
period governor and Senate were usually of the same political party, 
it rarely happened that objection was made to confirmation of those 
nominated. The favor of the executive once obtained, no further 
obstacle was apprehended. That official, in exercising the appointing 
power, was actuated by a variety of motives, if contemporary critics 
may be believed, some of them not altogether meritorious. There- 
may be noted for example, first, partiality for individuals ; second, the 
success of the party ; third, the good of the country. 

An influential politician undoubtedly had advantages in the contest 
for the office proportionate to his political value. Numerous and 
potential families were always favorites of fortune. George D. Pren- 
tice, in 1833, m the Journal and Focus newspaper, of Louisville, pub- 
lished a list of members of the Pope family in office. It was a numerous 
array, and yet it is but just to add, distinguished for talent. It u 
common complaint that the appointing power was selfishly and inju- 
diciously exercised. Examples were not wanting to give color, at 
least, if not support, to the predicate. 

As a rule, those appointed to judgeships were of respectable, if 
not first-rate, ability. " I have no fault to find," said Mr. Hardin, in 
1849, "with the present judges, that I am aware of, cither of the 
Court of Appeals or circuit courts. They are about as able men a-> 
we can get." It has ever been true that it is not every skillful lawyer 
that will make a competent or successful judge. Qualities that shine 
at the bar often lose their luster on the bench. The advocate and 
jurist are characters not always combined. Barry, chief-justice "t tin- 
New Court of Appeals, is an instance — a bright and eloquent lawyer, 
but who fell short as a judge. 

The occupants of the bench were men of high character for int< 
rity, and, as a rule, of ability and learning. Now and then, new 
judges wore their honors stiffly, but generally the excessive judicial 



47Q 



BEN HARDIN. 



dignity, exhibited in older States, was relaxed in Kentucky. In the 
court-room the judge was orderly, dignified, and sometimes rigid. 
Stories are told of old judges who were the civil service reformers of 
their day, who anticipated the age of steam and electricity in their 
dispatch of business. Off the bench, the judge was not to be distin- 
guished in bearing from the average dignified and successful practi- 
tioner. Travel and association on the circuit usually broke down any 
barrier dividing bench and bar. Tradition has it that on occasion 
when lawyers were overtaken in "wine and wassail," "his honor" 
did not always escape. The latter sometimes shared such foibles as 
card-playing, and wagering on the result — the latter not, however, for 
profit (we may well believe), but for the sole and bona fide purpose of 
adding interest to the game. 

While the bar has always criticised the judge for any excess of 
dignity, on the other hand, it has equally resented any marked devia- 
tion from the proprieties of his position. Such departure was instinct- 
ively felt to be disrespectful to its own body. The judge who, with 
a laudable curiosity touching the elephant, adjourned court to wit- 
ness that animal swim the river, has ever since been the object of 
ridicule.* Another, who while presiding in court leisurely proceeded 
to comb his head, narrowly escaped impeachment, f 

For the first fifty years of the century the labors of the circuit 
bench were not by any means onerous. The time annually occupied 
holding courts varied in different circuits, averaging, in 1849, accord- 
ing to Mr. Hardin's estimate, eighty days. No inconsiderable time 
was expended in horse-back travel from court to court. Each district 
embraced from four or five to double that number of counties, of 
much larger territory than now, and the distance between county 
towns was made seemingly greater by indifferent roads. 

If the labors of the bench were light, its compensation was meager. 
Salaries varied from eight to sixteen hundred dollars per annum. 
This stipend was usually supplemented by other income, perhaps that 
derived from farming operations, most frequently. But neither in the 
period spoken of, nor later, have Kentucky judges accumulated fort- 
unes, or laid the foundations thereof, out of their salaries. 

The appointed judges enjoyed, in a marked degree, the respect and 
confidence of the public at large. It is true that, in 1824, the distin- 
guished Judge Clark had incurred popular displeasure in holding the 
relief law unconstitutional, but this decision (finally held correct), did 

'Judge Nuttall, of Newcastle. t Judge Hewitt, of Louisville. 



mr. hardin's opinion of judges. 

not affect his character for integrity. Charges of corruption or par- 
tiality were rarely, if ever, heard and certainly never gained credit 

The bench of Kentucky has not escaped ambition. In [ft 
Christopher Greenup stepped into the office of governor from a cir- 
cuit judgeship.* Judge Clark, above referred to, did the same in 
1836. 

While in office, Judge McLean was twice presidential elector. As 
illustrating the esteem for the judicial office, it may be observed that 
three judges before whom Mr. Hardin practiced had previously 1. 
in Congress: Judges Ormsby, McLean, and Calhoon. During that 
period, William H. Crawford, after serving in the Cabinet with dis- 
tinction and being voted for for president, returned to his native 
Georgia to become a circuit judge. 

Mr. Hardin had an exalted opinion of the office. He thought it 
required the highest talents and learning for its proper dischai 
"The judge has," said he, "nobody to help him — no time given to 
him to make up his opinion, and must decide hundreds of controver- 
sies during the rapid progress of a jury trial, and he ought, there! 
to be a remarkably well-read lawyer. And not only that, but he 
should be one whose mind has great powers of concentration and 
energy, because the lives, liberties, and fortunes of men are to depend 
upon his decisions given upon the spur of the occasion, and without 
a moment's time for consideration. The Court of Appeals may take 
time. The circuit judge, above all others in the State, should be a man 
of the highest order of talents and attainments." < m another occa- 
sion, speaking of the qualifications of a particular person for the 
judgeship, he said: "Nature has been exceedingly kind to him in 
giving him a fine understanding, a clear and vigorous capacity, and 
not a kind of mind to be caught by the technicalities of the law. 
That kind of mind is indispensable for a judge. " + Great, however, 
as was Mr. Hardin's respect for the office and its occupant, y< • 
great was his aversion to pretense, that when he suspected it. he 
not spare "principalities nor powers." 

Speaking of the result of elevating a certain class of 1 iwv I the 
bench, he thus expressed himself: "You know how wise and digni- 
fied they look. Take a lawyer from the bar and put him on the bench 
and he becomes a most dignified character, and generally puts i^n two 



* Judge Greenup resigned as judge when he announced him 
office he had no opposition, and was a candidate but little over thil 

fit is believed that the person alluded to was John L. Bridges, to whom the encomium most fitlj 

applied. 



472 BEN HARDIN. 

or three pairs of spectacles to look deeper into the books than any other 
man. Put him in a position to electioneer before the people and they 
will wonder almost how such a man came to get into such a world." 
Barring an occasional outgiving like this — applying to a hypothetical 
rather than a real case — Mr. Hardin was respectful in his reference to 
and treatment of the judges before whom he practiced. Always com- 
bative and ready with polemic blows offensive and defensive, yet the 
court was never the object of his attack. Personal esteem, no doubt, 
in part, influenced him. On one occasion he claimed that he was 
*' ever the advocate for the rights of the judiciary, believing the bench 
to be the sheet-anchor of all our liberties — civil, religious, and politi- 
cal." He had been the colleague in Congress of Ormsby, McLean, 
and Calhoon, and in the State Senate of Churchill. Deferential him- 
self, he was ever the recipient of marked courtesy from the courts 
wherever he practiced. Indeed, envy went so far as to charge that 
he had undue influence with the judges. He would be the last one to 
contradict such an insinuation, as may be inferred from the following 
utterance : 

" I remember what Judge Bibb told me when I received my license. 
Said he, ' it is not enough for you to get a license from the judge, you must 
get one also from the people.' I said I would try to do so. Said he, ' you 
must bear in mind never to quarrel with the judge, and always, if possible, 
appear to be on familiar terms with him.' 'Why? said I. 'Because,' he 
replied, ' it invites business to you, and a contrary course will drive it away 
from you, if you are ever so competent.' " 

When Mr. Hardin came to the bar, Nelson and Jefferson counties 
were in the same district, and so continued many years. Judge 
Stephen Ormsby, of Louisville, then presided. He was succeeded, 
in 1816, by Judge Fortunatus Cosby. Judge Alfred Metcalfe presided 
in 1817-18 — Judge John P. Oldham from 1819 to 1821. All these 
were of Louisville. Nelson, in 1821, was cut off from the Louisville 
district and Judge Paul I. Booker, of Washington county, was appointed 
presiding judge of the district, and continued in office until Judge 
Armistead H. Churchill's accession, in 1833. Judge Samuel Carpen- 
ter succeeded Judge Churchill in 1847, ar >d held the office until the 
elective judiciary displaced the appointed judges. Mr. Hardin prac- 
ticed in several counties of the Breckinridge district. The first judge 
before whom he appeared in that district was Henry P. Broadnax, of 
Logan county. He was succeeded by Alney McLean, in 1S21, and 
he by John Calhoon, in 1842. In the latter part of his career, Mr. 



ORMSBY-C()-H\ 



473 



Hardin practiced before Judge William L. Kelly, in the Washin 
district, before Judge John L. Bridges, in the Danville distrii t, 
Judge Ben Monroe, of the Green district. He had frequent < 
Louisville, and occasional retainers in different parts of the Si 
beyond the territory in which he usually practiced. 

Stephen Ormsb v. 

A brief sketch of Judge Ormsby has already been given in a pi 
vious chapter.* He was a man of great personal worth, and not 
highly esteemed as a judge. That the relations between him and 
Mr. Hardin were of a kind and friendly nature may be inferred from 
his appointment of the latter as Commonwealth's attorney, March 
10, 1810, in place of Gabriel I. Johnson, of Louisville, a post held by 
Mr. Hardin until 18 16, when Charles A. Wickli ffe succeeded him. 

Judge Ormsby was a native of Ireland, whence he deemed it pru- 
dent to migrate after the Emmett rebellion on account of nis known 
sympathy with that ill-fated movement. On crossing the Atlantic he 
at once made his way to Kentucky, and took up his permanent resi 
dence. A gentleman by birth, and a lawyer by profession, h< 
ily became a successful practitioner and a prominent citizen. From the 
bar, he came to the bench before the beginning of the century, and 
served until 18 10. During the war of 18 12. he served a short while 
as aide-de-camp to General Armstrong. He became first president 
of the Bank of Louisville, on the establishment of that institution, in 
18 17. After serving several years in this position, he finally retired to 
private life, and died at an advanced age. 

FORTUNATUS CoSBV. 

Judge Cosby was born December 25, 17^6, in Georgia. At an 
early age he removed to Virginia, where he remained until manh 
He graduated at William and Mary College at nineteen years of a 
studied law; married Mary Fontaine, and with his father-in-law, 
Colonel Aaron Fontaine, removed to Harrod's Creek, in Jeflfi 
county, in 1798. He began practice of the law in Louisville, and 
soon after removed his family thither. His first domicile in that citj 
in keeping with his slender resources, was a log cabin, but professions 
success soon enabled him to build a brick residence said to be 
second of that material in the city. He was appointed circuit ju 
by Governor Charles Scott in 1810. He earned the reputation 

* See page 50, ante. 



474 BEN HARDIN. 

profound lawyer, and a learned and impartial judge. At the bar he 
was successful — especially so in a pecuniary view. 

His generosity and benevolence, however, retarded him in the 
accumulation of wealth. He was scholarly, brilliant in conversation, 
genial, and companionable. Differing politically, yet he and Mr. Clay 
were ever warm personal friends. His wife was the fit helpmeet oi 
such a man, and made home attractive by many virtues. He died 
October 19, 1847. His son, Fortunatus Cosby, was a poet of more 
than ordinary merit. Mr. Collins, in his history of Kentucky, has 
collected several of his productions. 

Alfred Metcalfe. 

Judge Metcalfe became circuit judge in 18 17. He had not resided 
in the district prior to his appointment, and came to it a stranger. He 
was tall and slender in person and of delicate physical constitution. 
He died in office in 18 19. 

John P. Oldham. 

Judge Oldham, a citizen of Louisville, became judge in 18 19, and 
continued in office until 1826, being succeeded by the well-known 
Henry Pirtle, an early friend of Mr. Hardin. He was a member of 
the House of Representatives for Jefferson county, in 1828. Mr. 
Webb, in "Catholicity in Kentucky," refers to him as the personal 
friend of Father Badin, a Avidely-esteemed pioneer priest. By change 
in district, Judge Oldham did not hold court in Nelson county after 
1 82 1, being succeeded there at that time by Judge Paul I. Booker. 

The subjoined sketch of Judge Oldham is from the graceful pen of 
one who owes his large natural endowments to a common ancestry. * 

"John Pope Oldham was born in Jefferson county, Kentucky, in the 
year 1785, and was the son of Colonel William Oldham, who commanded 
the Kentucky troops, in 1791, at the battle known as St. Clair's defeat, and 
who fell in that battle while gallantly leading his troops to action. Colonel 
Oldham had served as an officer under Washington, during a part of the 
revolutionary war. and never sheathed his sword until the contest ended. 
The county of Oldham, in our State, was named after him, and in com- 
memoration of the many services he had rendered his country. 

" His mother, Penelope Pope, was the daughter of Colonel William Pope, 
who came from Virginia to Kentucky in 1779, landing at Louisville. Judge 
Oldham related a somewhat interesting incident in the passage of Colonel 

* Colonel Samuel B. Churchill. 



OLDHAM. ,-- 

Pope and his family down the Ohio to Louisville. Colonel Oldham, then 
of the army, had been ordered to Kentucky and the West, to report th< i 
dition of military affairs there, and while he was returning to tl I il by 
the way of the Ohio river, he met Colonel Pope descending thai river with 
his family; and, as the one was anxious to learn what was transpiring in the 
East, where the war was raging, and the other to learn all about Kentui 
which he was about to make his home, they landed their boats and p 
the day together. 

" Penelope Pope, Judge Oldham's mother, was then only eleven years old, 
but a young girl, I have always understood, of surpassing beauty and intelli- 
gence, and Colonel Oldham, then a young and dashing officer, w, 
impressed by her attractiveness that, in taking leave, he said to I 
Pope: 'As soon as the war ends I will return to Kentucky and 
claim this fair young girl for my bride.' As soon as the war closed he 
came, sure enough, proposed, was accepted— and thus it happened that 
Colonel William Oldham and Penelope Pope were married near Louisville, 
Kentucky, in the year 1784. As stated above, in 1791, only seven J 
after this happy marriage, Colonel Oldham fell in battle, but left his wife 
ample means to educate and provide for their children.* 

"Judge Oldham, as well as all his children, had every advantage the 
country could afford, and when he reached the requisite age was fully pre- 
pared for the practice of law. At an early age he married Mil 1 inda 
Talbot, one of the gentlest and purest of women, and they lived together in 
peace and happiness for nearly fifty years. Judge Oldham met with su< 
in his profession from his first entrance in it. When thirty years of age he 
was appointed circuit judge, and I think remained upon the bench until 
1826, when he was elected to the Legislature, but only served one term. 
It never seemed that he had any great desire to remain in public life, lb- 
received the Democratic nomination for lieutenant-governor in 1X2N. but he 
was a member of the convention and promptly declined the honor. Mr. 
Breathitt, afterward governor of Kentucky (his warm personal friend), "as 
nominated in his place. In the year 1829, when General Jackson became 
President of the United States, Judge Oldham was appointed postmaster "f 
Louisville, and after fulfilling the duties of that office for seven or eight 
years with entire satisfaction to the president and the people, he sent in his 
resignation, and never sought or desired any public place thereafter, but 
seemed happiest among his friends and family. Judge Oldham was a man 
of liberal education, of courtly manners, of line personal app< 
great personal dignity. He was a man of perfect honesty a\m\ inl and 

of great promptness and undaunted courage, but never quarrelsome, but. on 
the contrary, a most genial companion. Like most decisive and su< 
men, he liked to have his own way, but was always open to 1 

* Mrs. Oldham, subsequently, was married to Harry Churchill. 



476 BEN HARDIN. 

rection, and especially so when talking to any one for whom he had much 
respect and regard. His friendships were strong, and he was not much of a 
hater, but woe to the man who ever dared deliberately to insult or trample 
upon him. Take him, all in all, he was a most admirable gentleman; hon- 
est, courteous, honorable in all things, determined in advocating what he 
thought was right, but ever agreeable and pleasant in discussion when others 
differed from him. He loved independence and abhorred debc; he was 
faithful in discharge of every trust imposed upon him. 

" He had two sons and two daughters. Both of his sons died without 
issue. His two daughters were accomplished and beautiful women. The 
eldest married the Hon. William F. Bullock, of Louisville, and the other Mr. 
Horace Hill, for many years president of one of the Louisville banks, and 
who was a citizen highly esteemed by all who knew him. Judge Bullock still 
lives, honored by all, a noble specimen of culture, integrity, and talent." 

Paul I. Booker. 

Judge Booker was born August, 1785, in Prince Edward county, 
Virginia. He came to Kentucky in 1806; studied law; was admitted 
to practice at Springfield, and enjoyed fair professional success. He 
represented Washington county in the Legislature in 18 16. He 
favored the right of Lieutenant-Governor Slaughter to succeed to the 
governorship on the death of Madison. Slaughter had fought under 
his command at New Orleans, where Booker commanded a com- 
pany. 

At the close of his legislative term, he was appointed Common- 
wealth's attorney by Judge William L. Kelly. He especially distin- 
guished himself in the prosecution of Samuel Davis, charged with the 
murder of one Smith. In that case Judge Rowan defended. A most 
remarkable case it was. Davis was a short man, not over five feet 
six inches, and very fleshy. Smith was a tall man, and slender. 
They had a personal altercation, and, during its progress, Smith 
stooped over to strike, when Davis stabbed him in the shoulder with 
a knife, severing the chyle duct. On straightening up, the orifice of 
the wound through the skin was an inch or two down on the breast, 
some distance from the actual puncture of the flesh. An unsuccess- 
ful attempt to probe it was made. Dr. Ephraim McDowell, the dis- 
tinguished and well-known physician, was sent for, and came. He 
pronounced it a mere flesh wound, and not at all dangerous. But in a 
day or so Smith was seized with a swelling of the abdomen, which, 
despite all medical aid, continued until death ensued — partly as the 
result of the deposit of chyle in the abdominal cavity and partly from 



CHURCHIL1 . j^- 

pure starvation. Rowan's defense was based on the theory that the 
deceased was not killed, but died of starvation. M« ,<,, al men i orrob 
orated this so far as to say that deceased died of starvation, although 
they said starvation was the result of the wound. The prosecul 
was ably conducted by Booker. His speech was said to hav< b 
fully equal to that of Rowan, who was always able. The defendant 
was, however, acquitted by a jury unaccustomed t<> the subtle sophis 
tries of the bar. 

In 182 1 Booker received the appointment of circuit judge from 
Governor John Adair, a post he held for twelve years. 1 1 1; was a clear 
headed man, exceedingly logical in his modes of thought, and of 
excellent attainments. He discharged the duties of his office not only 
with credit to himself, but to the satisfaction of the bar and people. 

In 1833 he had an attack of cholera and fell into bad health. After 
that he seems to have suffered habitually from the apprehension of 
death, or from apprehensions which, at least, slight causes would 
arouse. He never practiced law afterward, except in matters where 
he had a personal interest. He died in May, 1872, and was buried in 
Washington county, where his life had been spent. 

Armistead Henry Churchill. 

Judge Churchill was born near Louisville, October 19, 1796. He 
was the son of Harry Churchill and Penelope Pope, and half brother 
to John Pope Oldham, already mentioned. After attending Transyl- 
vania University two and a half years, he studied law at Lexington 
under the direction of his distinguished uncle, Governor Jnhn Pope. 
Receiving license he began his professional career in [818, at Kli/a- 
bethtown, where he spent his subsequent life. He was a sucee^sfi.l 
practitioner. In 1832 he was chosen a member of the State Senate, 
and was a colleague of Mr. Hardin in that body. He had served but 
one session, however, when he was (February, 1832) appointed cir- 
cuit judge. His judicial career continued fifteen years, in which 
period he gained credit and satisfied public expectation to a mar 
degree. "A more upright man never sat upon the bench." was tlv 
expressed opinion of Mr. Hardin. 

On account of ill health he resigned his office in 1847. He sm 
vived the civil war, and had passed four score before his death M 
was long a member of the Episcopal church, to the inter ' which 

he devoted much of his later life. He was a man of culture and many 
private virtues, and left behind an unsullied name. 



478 ben hardin. 

Samuel Carpenter. 

Judge Carpenter was a native of Madison county, Virginia, born 
October 4, 1785. About ten years afterward he was brought by his 
parents to Bullitt county, Kentucky. It was but an ordinary English 
education that he obtained. He studied law at Bardstown. where he 
settled in 1805 — the same year Mr. Hardin came thither to enter Felix 
Grundy's office to complete his studies. In 1821 he was elected the 
member from Nelson senatorial district to the Senate. It is said that 
for lack of taste for political life he resigned after two years service. 
It was the period of " relief" legislation, and Judge Carpenter resigned 
just in time to escape the "judge breaking " comedy of the follow- 
ing year. 

In 1828 he joined the Baptist church and was shortly afterward 
ordained elder. He had pastoral charge of the churches at Bardstown 
and Mill Creek for several years. The former he almost destroyed, says 
a writer of that faith,* "on account of his adhesion to the Campbell- 
ites. " The church building was sold by legal process for a small debt 
and Judge Carpenter purchased it. But he resold to the Baptists for 
a nominal sum, winning their favor by this generous act. After uniting 
with the "Reformers" in 1833, he preached occasionally, but his law 
practice chiefly engaged him. 

In 1847 ne was appointed by Governor Owsley circuit judge, in 
which office he continued until 185 1, when he was superseded by the 
new Constitution. As a judge he was noted for rapid dispatch of 
business. The gentlemen of the bar were kept at a " double quick" 
in Judge Carpenter's time. Many are the anecdotes related illustrat- 
ing this trait. Court opened early and held late, and the noon recess 
was brief. Many cases received short shrift in absence of counsel in 
the early morning. That he and Mr. Hardin were not en rapport may 
be inferred. Said the latter, "Judge Carpenter not only keeps up, 
but actually a year or two ahead of the docket." That the judge 
enjoyed the favor of Governor Owsley was not a passport to Mr. Har- 
din's good graces. 

He was better versed in precedents and reported cases than in the 
general principles of the law. At the bar he and Mr. Hardin were 
often opposed, and in their younger days their encounters were not 
always amiable. 

Judge Carpenter in person was slender, under medium height, of 
excellent cranial development, and capable of great physical endur- 

* Spencer in his History of Kentucky Baptists. 



BROADNAX. 






ance, active and energetic. He spent his life at Bardstown. I [e 
married in 1815 to Margaret Slaughter, and from this union sprang 
three sons and seven daughters. H, died June 24, 1 s 5 7 . 

* 

Henry P. Broadnax. 

Judge Broadnax was a native of Virginia. After receivin 
education, he emigrated in youth to the Green river region "I" Ken- 
tucky. Here he began practicing law. In 1804 he became circuit 
judge, an office he held to old age. He ultimately resigned, retiring 
to his farm in Logan county, where he spent the close of his life. 

He was a lawyer of fine attainments and an able judge. I le v 
distinguished for his uprightness and firmness of character. Althoi 
frugal in habits, he was generous to the poor. In the neighborhood in 
Logancounty, where he lived, there was at one time no house of pub- 
lic worship, and the people being generally indigent were unabi 
erect one. Judge Broadnax built one at his own cost. Returning 
from holding ^ourt, on one occasion, a delegation of his neighbors 
waited on him to notify him that the woods had caught fire and burned 
the meeting-house, and to inquire what he proposed to do about it. 
" I built that house, " he responded, "and gave it to the Lord, and 
if He don't take care of His own property, I can't furnish him 
another." 

He became a member of the Presbyterian church late in lite. 1 [1 
never married or engaged in politics. He is said to have been small 
of stature, punctilious in dress, dignified in manner, and blameless in 
life. He died in 1857, almost a nonagenarian. 

The following incident from the "Life of John J. Crittenden," i-< 
quite as pertinent here as there : 

"There are, perhaps, people now living in Logan county. Kentu< ky. who 
remember Judge Broadnax. He was a stately, high-toned Virginia gentle- 
man, who dressed in shorts, silk stockings, and top boots. IK' had an exalted 
sense of the dignity of the court, and a great contempt for meanness, ras 
ity, and all low rowdyism. 

" Mr. Crittenden used to describe, in his most inimitable maniv 
which took place in the court-room, in Logan where Broadnax presided 
man had been indicted for biting off another man's ear. in a street brawl. 
This was a penitentiary offense, and Mr. Crittenden was engaged I 
the prisoner. Judge Broadnax was a warm friend and admirer <>f Mr. Cr 
tenden, but he railed at him fiercely for taking fees of such low 1 The 

judge was, at heart, an aristocrat. 



480 



BEN HARDIN. 



" In this case, after great difficulty and delay, eleven jurymen had been 
obtained. Many respectable men had been summoned, and rejected by the 
counsel for the prisoner, and both the judge and sheriff were much exasper- 
ated. At last, an ill-looking fellow with a tattered straw hat on his head, 
half the brim being torn off, a piece of his nose gone, and his face bearing 
many other evidences of drunken brawls, was brought in. After looking at 
him a moment and asking him a few questions, Mr. Crittenden said : 'Well, 
judge, rather than be the cause of any more delay, I'll take this man.' 

"The judge, who had been looking on angrily, could no longer control 
himself. He sprang to his feet, exclaiming : ' I knew it ; yes, I knew it ! 
The moment I laid my eyes on the fellow I knew you would accept him.' 
Then, taking a contemptuous survey of the jury, he exclaimed, aloud : ' Did 
any living man ever see such a jury, before ?' 

" Mr. Crittenden quietly replied : ' Why, your honor, I pronounce this a 
most respectable jury.' 

"After this speech of the judge, Mr. Crittenden said his mind was at 
ease about his client; he knew he would be acquitted, and he was." 

Judge John Calhoon, while a candidate for the appellate judgeship, 
in 185 1, happened at Russellville. He had been admitted to the bar 

while Judge Broadnax was 
on the bench, and felt great 
reverence for him. Said he 
to a party of friends : ' ' I can 
not leave Logan county with- 
out calling on Judge Broad- 
nax." So he did, and received 
a cordial welcome. Judge 
Broadnax had become very 
pious after his retirement 
from the bench, and was ex- 
ceedingly assiduous in his de- 
votions. His guest had not 
remained a great while before 
a servant brought into the 
room a stand-table with a 
bible upon it. 

Calhoon was not left long to conjecture the meaning of this. 
" Mr. Calhoon," says he, "the hour has arrived for me to engage in 
devotion, and I would not omit or postpone it if President Fillmore 
himself were here. You can remain, or, if you prefer, you may 
retire, and I shall net be at all offended." "No," said Calhoon, "I 




Judge John Calhoon. 



BROADNAX. 

will remain. I have heard you do most everything else, judge, and I 
am disposed to remain and hear you pray." Not the L< ast di 
certed by this light rejoinder, Judge Broadnax asked him I 1 in 

prayer. It was on a hard, uncarpeted, ashen floor, and the pra 
was long — rendered longer than usual by earnest supplications for 
mercy to his impenitent friend. 

Calhoon's impiety was descanted upon at great length and his par- 
don was asked for — of the Being to whom all things w ere possible. Hut 
afterward Judge Broadnax parted very kindly from his old friend, and 
the latter went on his way considerably knee-worn by the hard floor. 

" I made diligent inquiry," says Hon. James II. Bowden in a letter i<> the 
author, " but could hear of no one who had ever seen a Likeness of J 
Broadnax. It is not so hard to get a picture, more 01 less distin< i. of the 
moral and mental man. Indeed, the many anei dotes his old a< quaintan< es 
easily recall, are told as illustrations of his peculiar modes of thought and 
feeling. They all present him as a man of active and persistent prejud 
which were roused whenever the religious or political opinions of others ( ame 
close enough to his own to be struck at. 

" Doubtless he was a man of something more than ordinary talent, and a 
lawyer of very much more than common acquirements. As a judge he had 
favorites; but while he manifested his personal preferences, he was able to 
forget them in making his decisions. In a case in which John J. Crittenden 
and Solomon P. Sharp were attorneys on different sides, he interrupted the 
latter so often by stating cases which Sharp regarded as irrelevant and 
intended merely to harass him, that he at last said : " May it please your 
Honor, if the heavens should fall, how many larks do you think you w 
catch?" Sharp was a Democrat, Broadnax a Whig, and it Is not imposs 
ble the judge thought that political heresy ought to have been an indu table 

offense. 

"From the marrow out he was an aristocrat. A man whose ai 
were not satisfactory had a poor chance for his esteem. He even formed a 
•adverse opinion of a man who wore a cap such as had been worn by some 
good-for-nothing people he had known in Virginia. He seemed to think 
that merit always succeeds, and, therefore, poverty was in his , ■, elu- 

sive evidence of the lack of merit ; he had no respeel for a weak charai 
and poor people by their poverty proved their weakn 

<< ]Vi r . M told me he was with the judge once when suffering from a 

disease which it was thought would prove fatal. Mrs. Y .a neij 

between whom and the judge social relations had been disturbed 

to see him in his extremity. Mr M said : ' Judge, here is Mrs. V -. 

who has come over to see you.' The judge looked at her and turned 1 

head away, saying: -I don't know her.' Mr. M , SU] he had 

31 



482 BEN HARDIN. 

failed to recognize her, told him who she was — his next-door neighbor. At 
last he said : ' Oh, yes ! I know who she is — a woman of a great deal of 
pretension and very little piety.' Thereupon she began to lecture him on 
his short-comings, lamenting that he was so poorly prepared to meet his 
impending death ; and she kept it up until he got so mad as to break up 
the disease. But he did not attribute his recovery to the reaction thus pro- 
duced. He had sent for Mr. B , an old and reverend minister, who 

prayed for him. ' If that prayer doesn't cure me,' he said, 'it will not be 

Mr. B 's fault.' 

" But for all these peculiarities, he was kind-hearted and ready to help 
the distressed. It seems that he was not averse to having his good deeds 
known — not that he published them, but he was not in any degree secretive 
in regard to them. He seems to be remembered more distinctly on account 
of his eccentricities and rough virtues than for serious faults. Many illus- 
trative anecdotes could be given. For example : Meeting a poor man, who' 
had a house full of children, he stopped him and asked if he wasn't named 

B . 'Well you're no account; you have no right to have children; 

you're a trifling fellow ; ' all of which was merely the prelude to his direct- 
ing B to send one of his children to school at the judge's charge." 

Alney McLean. 

By change of districts Judge McLean, of Greenville, in 1822, suc- 
ceeded Judge Broadnax in the Breckinridge district. Mention has 
already been made of some of the events in his life in speaking of his 
congressional career.* He was always an active politician. His acces- 
sion to the bench and twenty years service there did not diminish his 
interest in public affairs. 

He had served as a captain at the battle of New Orleans, and while 
not with the Kentucky troops, who, in the language of General Jack- 
son, " ingloriously fled," yet he resented this stigma cast upon his 
State. He was ever an opponent of "Old Hickory." Naturally 
enough he was the friend of Mr. Clay. He was, while judge, chosen 
a Clay elector in 1824 and again in 1832. His taste for and activity 
in politics shocked those of his constituents specially sensitive as to 
the proprieties of the bench. 

He was pronounced by one who knew him, and was well qualified 
to speak on the subject, "a model gentleman, of great courtesy and 
kindness to the junior members of the bar, an honored citizen, and a 
just judge." He died in office in 1841. Thirteen years later the State 
Legislature created a new county and named it in his honor. 

♦Chapter VI. 



CALHOON. 






John Calhoon. 

Judge Calhoon was born in Henry county, Kentucky, in 1797. II, 
had such advantages as a sprightly youth could make of the primitive 
schools of the Green river country, to which his father had remo 
at any early day. His father was an associate justice in 1 u\ i< nty, 

while circuit courts had officers of that character. 

Judge Calhoon for a considerable period was a deputy in theclerl 
office of Ohio county. In 1817 he came to the bar and began pra< 
at Hartford. In 1822 he was an applicant to the governor for the 
appointment of Commonwealth's attorney in the newly-created district 
of which Ohio was part. He had for a competitor Mr. I lardin's cousin, 
John Hardin McHenry, then of Leitchfield. Judj 1 Ihoon 
Governor Adair, at Frankfort, but soon learned that his aspirations 
were in vain — that the governor had already decided to appoint 
McHenry. It was, perhaps, to McHcnry's advantage that his kins- 
man and preceptor, Martin D. Hardin, was near the throne — in the 
capacity of secretary of State. At the instance of Calhoon, the com- 
mission for his rival was prepared and he brought it to Leitchfield on 
his return — he and McHenry being warm personal friends. M< eting 
the latter, Calhoon gravely informed him that he had obtained the 
appointment, whereat McHenry warmly congratulated him. Y 
said Calhoon, "I have got it — here is my commission." McHenry 
glanced over it and discovering his own name in it. asked what that 
meant. "Why that is strange," said Calhoon, with feigned sur- 
prise, " it is evidently a mistake." But it was not possible to carry the 
deception further, and the next day McHenry accompanied his friend 
to Hartford, where he began a long, honorable, and successful cai 

Judge Calhoon was for several years a member of the Stab I 
lature; in 1820 as a member for Ohio county, and for Breckinridge 
county (to which he had removed) in 1829, 1830, and 1840. 
served two terms in Congress (1835-39), defeating Thomas Chilton, 
a noted politician, for the first. Chilton and Calhoon had been com- 
peting candidates for Congress in 1827. The election v but 
the former had a small majority. The officers in declaring the result 
excluded a precinct for irregularity, and gave Calhoon the certifi 
Both gentlemen started to Washington, but meeting at Louisville they 
agreed to resign and have a new election. At the new election Chil- 
ton's majority was decisive. On Judge McLean's death Call* 
appointed circuit judge by Governor Letcher— an office he held unti 
the new Constitution displaced him. For this appointment he had 



484 BEN HARDIN. 

ao-ain contested with Mr. Mc Henry, but this time with better success. 
At the election of 185 1 he was defeated by the eminent jurist and 
statesman, Elijah Hise, for judge of the Appellate Court, after a 
brilliant canvass. 

The county seat of McLean was called by his name, and there he 
spent the close of his life. Judge Calhoon was a life-long Whig — ever 
the friend and admirer of Mr. Clay. In a letter to Francis Brooke in 
1839 Mr. Clay wrote: " Mr. Calhoon, of our State, being on a visit 
of business at Richmond, I have given him a letter of introduction to 
you. He is intelligent, shrewd, and trustworthy. You may give him 
all confidence." Hardin and Calhoon were also friends. They met 
at the bar and on the circuit as lawyers. Both brilliant — like attracted 
like. In 1829-30 they were both in the State Legislature, though in 
different houses. In 1835-37 they were colleagues in Congress. 
After Judge Calhoon was in failing health (not a year before his death) 
Mr. Hardin visited him and spent a day or so with him. On his return 
he observed to an acquaintance that the signs of death were visible on 
his old friend. Hardin himself had apparently good prospects for 
many years of life — yet they died within a month of each other — Har- 
din preceding. Judge Calhoon was in Louisville under treatment of 
an eminent physician when the end came, and his professional breth- 
ren of that city appropriately expressed the public loss at a meeting 
held at the time. 

He was an orator, a wit, and an able, skillful, and accomplished 
lawyer. He was a profound judge of human nature, and at his best 
before the jury was omnipotent. It is related that he obtained the 
acquittal of a negro girl who had burned her master's house by depict- 
ing the cruelties of the latter to his slaves. His faculty for humor and 
power of repartee had many illustrations. In a case in Hancock Cir- 
cuit Court, Judge McLean presiding, he and Mr. McHenry were on 
opposite sides. Calhoon suggested that an order had been made at a 
former day of the term, which opposing counsel denied. The record 
was examined and the order found to be as stated. Said Judge Mc- 
Lean, "the court must have been asleep or bereft of its senses when 
that order was made." " Possibly your honoris right, "retorted Cal- 
hoon, " but my esteem for the court prevents me taking either side of 
the question." 

After his career began he supplied in large measure the defects 
of early training. He was a large, handsome man — over six feet in 
height, and of fine presence and address. 



AFFINITIES FOR THE LAW. .} > : 



CHAPTER XXVIII. 

PROFESSIONAL CHARACTERISTICS. 

nR. HARDIN was in active practice as a lawyer during a period 
extending over forty-six years — 1806-1852. During that jx riod 
he was a regular and successful practitioner, not only in the courts of 
the county of Nelson (where he resided), but also in Hardin, M 
Breckinridge, Grayson, Bullitt, Larue, Washington, Marion, Green, 
and Spencer — an area of country sufficiently lar^e with its wealth and 
population — if in Europe and ruled by an emperor — to have- ranked 
among the "great Powers." But his labors were by no nit :ans eon- 
fined to that territory. He frequently accepted retainers in other 
counties of the State, and not seldom beyond its limits. In 1 
during that period celebrated in one quarter, at least, as " Flush Times 
in Mississippi and Alabama," he began regular visits to Jackson, Mis- 
sissippi, for the purpose of practicing his profession. His sojourns 
there occurring during the winter months were repeated for a number 
of years, and were attended with profitable remuneration. 

Political and official engagements were, as a rule, subordin.r 
profession'al interests and duties. In truth, the practice of the law was 
the business of his life, everything else being merely incidental. The 
chemist in his laboratory, the astronomer with his telescope, the ambi- 
tious general on the battlefield at the head of his army, none of these 
ever felt greater enthusiasm than he in the court-house dealing polemic 
blows in behalf of a client. His intellectual and moral nature was 
nevermore absolutely normal than when some protracted trial taxed 
his energies and resources to their utmost. He loved his profession as 
a sailor his ship and a soldier his sword. In its practice lie empl< 
all his powers, and his achievements there outshone all he accomplished 
elsewhere. He respected and reverenced those lawyers who by their 
talents brought honor to the guild. On the other hand, he n 
as interlopers those who, by creeping into the profession, had "mi 
their calling." For this latter class he lacked Christian charity. 
was charged with antipathy to young lawyers, and. perhaps, was in 



* Flush Times, etc., by J. G. Baldwin. 



486 BEN HARDIN. 

some degree culpable, but if the young gentlemen had bright parts, 
no one more quickly recognized and appreciated them. One of these 
latter, who enjoyed Mr. Hardin's friendship, remarked of him that he 
never had his equal as a "fool-killer." He felt himself, in some sense, 
an outside sentinel for the profession, and that it was his duty to chal- 
lenge intruders and refuse admission to those not entitled. He esteemed 
it one of the most exalted callings. He regarded it as having other 
and higher duties than drawing pleas and haranguing juries. "The 
law is an honorable profession," said he, on one occasion, "and one 
that controls, in a great degree, public sentiment, and one also that, 
from time to time, has done a great deal toward saving this State from 
anarchy and confusion." 

In the range of his practice he was employed on one side or the 
other of every important case. The litigant was deemed fortunate by 
the public who first secured his services. The Wilkinson tragedy 
occurred at night at Louisville, and that same night a messenger on a 
swift horse was dispatched to Bardstown, forty miles away, to bespeak 
Mr. Hardin's services for the prosecution. 

In many of the counties where he practiced, he had local partners 
with whom he shared fees in that particular court. The well-known 
Joseph Holt, of Washington, in the outset of his career, was thus 
connected with him. Governor William Johnson, of Bardstown, sus- 
tained a similar relation at Mr. Hardin's death. Outside of any part- 
nership he had either an express or tacit understanding with attorneys 
in different counties that in case of need he would be associated in 
their cases. His relations with his colleagues were always of the kind- 
est character. Lawyers lived in his day, as well as before and after- 
ward, who did not hesitate, when associated in cases, to ignore juniors 
and appropriate to themselves all the credit of success. To Mr. Har- 
din's honor be it said that no one was freer from such selfish injustice. 
On the contrary, while utilizing the suggestions of his colleagues or 
using authority supplied by them, he was ever studious to acknowl- 
edge in the most explicit and public manner his obligation, and gave 
others, especially younger men, the fullest share of the credit and 
glory of success. 

There have been few men better endowed by nature with the qual- 
ities for success in his profession than Mr. Hardin. If there ever was 
a natural lawyer, he was one. His powers of perception and obser- 
vation were remarkably quick and penetrating. From the briefest and 
most confused statement of a client he not only caught the salient 



A LEGAL MIND, .j.S; 

points of a case, but intuitively supplied its details. The 
or equivocation of a witness rarely deceived him. I he conn< i tion of 
remote facts with his case never escaped his attention. Winn appar- 
ently absorbed in revery and reflection (which was habitual with him) 
he constantly surprised those about him by giving clear proof that 
nothing was unobserved. He could enter a case for the first tune 
when it was called for trial, and by the conclusion of the evidence be 
entirely familiar with all its details and every question involv< d. 

From boyhood he was noted for a remarkably retentive memory. 
The impression a fact or idea made upon him forever fixed it in his 
mind. He forgot nothing. He remembered what he read, heard, or 
saw. The genealogy of the humblest man in the range of Ins 
acquaintance was not less familiar than the long and often diverging 
line of adjudications on a mooted legal question. His power of i 
centrating his thought on a particular subject was ever a mai 
characteristic. He, as it were, took it into his mind and turned it 
over and over, taking piece by piece apart, examining its every detail. 
It was the recent observation of a distinguished judge that " the law 
is the calling of thinkers."* Mr. Hardin was characterized by one 
who knew him well as an "absorbed thinker. "t 

He had that most useful faculty for a lawyer — the power of viv- 
idly realizing the natural and logical details of a scene or event — of 
picturing on the mental retina every incident, detail, and circumstance 
in such a way that he made it all as perspicuous to the jury as it he- 
had witnessed it himself. Said Spencer (whom Mr. Hardin pro 
cuted, and who was convicted of murdering his step-son. on circum- 
stantial evidence): "Mr. Hardin told exactly how I killed him, 
except that I had killed him a half-hour sooner than he said.'* V \ 
until then, so slight was the evidence of guilt, that many believed the 
man innocent. Not only by this faculty did he impress the jury, but 
he was enabled to draw facts from unwilling witnesses, and dete< 
the falsehood of the less reticent. 

He was laborious and untiring in professional labor — delighting in 
all its details. His mind was ever on the alert. No one more read- 
ily or accurately read the secrets of the human h< The wel 
known Tom Marshall never meant to praise him when lie pronoui 
him "a good judge of bad men." The faculty thus admitted, and 
thus limited, was no slight professional qualification. It has 
frequently said of him that he had that best of all senses— "common 
sense." It is difficult to define the idea thus expressed, further than 



"Oliver Wendell Holmes, Jr., of Massachusetts. fHon. Hen J. Wei 



488 BEN HARDIN. 

to say that it indicates the equilibrium of all the mental powers, fully- 
developed and in full, free, and vigorous action. Common sense is 
genius in every-day attire. 

His natural endowments had been admirably supplemented by 
varied and extensive attainments and scholarly culture. He had been 
both an attentive and omniverous reader. A student, untiring and 
profound, he had invaded all the fields of learning and polite litera- 
ture. He was not only familiar with legal principles as laid down in 
text-books and adjudged cases, but, like the Indian philosopher who 
examined the foundation of the world, Mr. Hardin had discovered the 
"turtle" on which the law rested. In emergency it was rare that he 
had not an authority to serve his purpose. When opportunity offered 
he indulged in research and no one was more diligent in ' ' running 
down the authorities." The decisions of the courts of other States 
and of foreign tribunals he thought entitled to little consideration 
unless some law was involved affecting the particular tribunal. In 
ascertaining what should be the rule of law in Kentucky, on new 
questions, he deemed it better to rely on elementary doctrines found 
in the text-books, compared with our statutory system as interpreted 
by our own courts. " I recollect one day, " says Martin D. McHenry, 
of Iowa, "hearing him argue a question, and I remember just how 
he looked and what he said — how his countenance beamed and his 
intellectual eyes bore directly on the judge as he said ' the whole 
law, may it please your honor, is comprised in a comparatively few, 
well-defined, well-understood, conceded principles. All else is but 
deduction from these/ Said General William Preston, than whom 
few knew him better : 

" The law book which Mr. Hardin constantly carried was a well-thumbed, 
half-worn copy of MacNally on Evidence. As he rode the circuit, he put 
a shirt in one end of his saddle-bags and MacNally in the other. I once 
inquired of him his reason for preferring this work to the more elaborate 
treatise of Mr. Starkie, at that time most approved by the profession. He 
replied that MacNally was an Irishman, full of the sentiments, passions, and 
prejudices of the Irish nation, and his book was written when his people 
were struggling for liberty, and somehow the principles he laid down had a 
leaning for the defendant. He did not much regard the reports of his own 
State, not even Bibb (the best of them), but was partial to the early reports 
of the Supreme Court — Dallas, Cranch, and Wheaton." 

While never a specialist in the law ; while familiar with the learn- 
ing in his day of all its branches, he was pre-eminent as a "land" 



THE ETHICS OF PR0SKC1 I ION. 

lawyer, or, in other words, he was skilled in the law touching til 
land. The land law of Kentucky embraced a complex and difficult tx 

of rules — the peculiar outgrowth of the circumstances of the i 
history of the State. He has been very generally spoken ol 
great criminal lawyer, as though his fame rested solely on his sua i 
in that class of cases. He was undoubtedly poss< ssed ol great and 

peculiar skill in criminal practice, but there could not be 

mistake than to suppose that his only or his chief eminence lay in 

that direction. 

On one occasion, near the close of his career, he remarked that he 
had participated in the trial of as many as a thousand cases of felony 
— for prosecution or defense. The question was not only mooted, 
but gravely argued in the celebrated Wilkinson case (for murder), 
whether in good morals and consistently with sound ethics a law \ i i 
could accept a fee to prosecute in a capital case. That he could not 
was ingeniously urged by Judge Rowan, of counsel for defense. Mr. 
Hardin, who had accepted a fee in the prosecution, was berated and 
denounced for having done so. The following may be taken as a fair 
sample of the specious sophistry employed by Rowan on that occa- 
sion : 

"I would ask you (addressing the jury), I would ask casui^N. I would 
even ask the venerable and distinguished lawyer himself, to tell me what is 
the difference in the moral guilt between taking a man's life for his monej 
and taking money to take his life? I declare solemnly if there he .1 differ- 
ence in the moral guilt I have not brains to comprehend or perceive it. I 
can readily perceive that in reference to the exterior aspect of the two c 
the former would seem to have the advantage of the latter in tin- t.u i 
that with it are associated a boldness and daring of which the latter is entirely 
destitute. The highwayman in taking the life of another for his money ha/ 
ards his own life. He may himself be slain, and if he should not. he i 
be apprehended, convicted, and expire on the gallows. He in< nr» die f 
ard of all these events. There is a chivalry, a charm, a fascination, I 1 
almost said a witchery, which gilds and, to some small extent, mitig rime 

itself. But in the latter case, there is not one mitigating, not one redeem- 
ing, trait." 

In thus urging that all the talent in the legal profession should 
subject to the exclusive monopoly of the criminal class, possibly the 
speaker had not forgotten the time when he himself stood in the pris 
oner's dock to answer for slaying an adversary in a duel. It would be 
unkind, however, to insinuate that many excellent lawyers decline 



490 



BEN HARDIN. 



prosecute because they are of the class whom the Saviour requested to 
cast the first stone when the woman was caught in adultery. Mr. Har- 
din was free of these finical and supposititious scruples. He said him- 
self that he had more frequently defended than prosecuted. " I never 
prosecute a man," said he, "unless I believe him guilty, and then I 
prosecute him quite as freely as I would a sheep-killing dog." 

He was an unmercenary lawyer in the sense that he regarded the 
profession as something better than a mere money-getting avocation. 
Many instances could be collected where he volunteered his services and 
refused compensation. When, as often happened, he was appointed 
by the court to defend accused persons, unable to employ counsel, he 
never declined the appointment. Such clients were served as faithfully, 
skillfully, and ably, as those who paid generous fees. On such occa- 
sions he would usually turn to some younger member of the bar, say- 
ing, "here George," or " here Martin," " come and help me defend 
this poor fellow. Now, let us strip to the buff and fight for him within 
an inch of our lives." 

" I recollect such an instance," says Mr. McHenry, "in which he 
called on me to help prepare and try the case. We got the poor fel- 
low off without the smell of fire upon his garments, both of us feeling 
amply compensated for our labors by the consciousness that we had 
done a real service to a persecuted man who had nothing to pay us." 
When he demanded compensation, his fees were extremely moderate. 
In fact, his professional brethren complained that he thus depreciated 
the value of legal services in all the courts he attended. 

Says Mr. Collins, the historian : "His practice yielded him a hand- 
some revenue and, consequently, a handsome fortune, in spite of the 
extremely low fees he charged. If full fees had been charged, his 
fortune would have been immense."* The late Andrew J. Ballard, of 
Louisville, thus spoke of an interview he once had with Mr. Hardin, 
in which the subject of fees was mentioned: " I met him," says Mr. 
Ballard, "at Cushman's tavern, in Grayson county, shortly after the 
close of the Mexican war. I was then a young man. He talked to 
me and some young companions half the night, and was exceedingly 
entertaining. Among other things he said that most of the money 
he had made in his profession had arisen from contingent fees. His 
regular, fixed fees had not averaged over about two thousand dollars 
per year." 

From principle, inclination, or policy, he always, where possible, 
maintained kind relations with the judges in whose courts he appeared. 

♦Collins' History of Kentucky, Vol. II , page 646. 



SKILL IN DETAILS. 

He was not only outwardly deferential, but treated the occupant ol 
the bench with genuine consideration. In part from i II 
well as respect for the court, he never contended for a principle of law 
he knew or believed to be wrong. It can readily be imagined— this 
characteristic being known — how potential were his suggestions. H< 
not only scorned contrary modes, but had a contempt for those who 
indulged in them. If he made a statement of law or fact to the court, 
that was incorrect, he had himself been deceived or misled. 

In his deportment to his professional brethren, he was courteous, and, 
when leisure permitted, social. He was fond of entertaining a group 
of lawyers, that would readily gather when he talked, and he heartily 
enjoyed the witty gossip of the bar. His demeanor to witnesses varied 
with each case and each witness. Sometimes he seemed indifferent to 
what witnesses said, scarcely asking a question. At others his exam- 
inations were protracted and searching. No one had -niter skill in 
"pressing" a witness. His equanimity and patience were unfailing. 
If one approach failed to elicit the answer sought, he tried another. 
A hunter never walked around a tree in which a squirrel evaded him, 
with more wariness and pertinacity than Mr. Hardin crept around a 
reluctant witness. 

No lawyer was ever more diligent in preparing his cases for trial, 
and in understanding the exact state of preparation. On the circuit, 
it was his invariable habit to visit the court-room or clerk's office each 
night, and examine the records in all the cases in which he was 
engaged for trial the succeeding day. If the prospect of his client's 
success was to be improved by delay, he sought delay. [fa i 
required to be " seasoned" before being tried, that process was 
invoked. The case of Cy Hultz, for a criminal offense, was <m 
these, where he obtained repeated continuances, until public feeling 
against the defendant, by some peculiarity of psychological chei 
try, was converted into sympathy for him. 

In a jury trial, Mr. Hardin was in his element and at his h< I 
From the calline of the case to the rendition of the verdict, he was 
skilled in every detail. The minutest of these had his careful atten- 
tion and thought. Mistakes were avoided in indifferent matters. The 
selection of a jury was not unlike turning the pages of a book whose 
entire contents he knew. He usually knew each witness personally, 
and not less thoroughly than the recording angel who noted the sins 
done in the body. But if he did not know him individually, if i| 
rant of the species, he readily discerned the genus and quickly classi- 



492 



BEN HARDIN. 



fied him. The foibles of his adversary, and opposing counsel were 
so many resources to be drawn on when necessary. No one could 
establish confidential relations with particular jurors on slighter 
hints, and no one could utilize facts not in evidence with greater 
adroitness. Of his modes of argument more extended mention will 
be necessary. 

He was peculiarly skillful in the selection of a jury, and few were 
the errors he committed in this respect which human foresight could 
prevent. He was not only guided by his knowledge of the particular 
juror, but he applied principles on such occasions commonly over- 
looked. Once he refused a hair-lipped man on a jury, assigning as a 
reason (to his colleague) that ' ' no man on whom the Almighty had 
put his mark would do to trust. " ' ' When," said he, ' ' the Creator has 
not finished his work, let it alone. Such men always wish to bring 
others down to the level of their own misfortune." Says Colonel 
Alfred Allen : "I remember that not long after coming to the bar, 
and while I was Commonwealth's attorney, I was on one occasion 
associated with Mr. Hardin in the prosecution of a man for hog steal- 
ing. Much depended on our side on the respectability of the jury. 

A certain Mr. was called. I remarked to Mr. Hardin that he was 

a good man for us, as he was intelligent, well-off, and didn't depend 
on the 'range for his meat.' Mr. Hardin objected to him, saying 
that the man's father was once indicted in the same court for the same 
offense, and had a close shave for acquittal." 

His statement of his case to the jury was usually brief and lucid. 
Possibly in difficult cases he did not, with entire candor, disclose in 
advance all the points on which he hoped for success. But he avoided 
the error into which otherwise skillful counsel fall — he never over- 
stated his case. 

One peculiarity marked the opening of the examination of each 
witness. Although the witness had been sworn in his presence the 
moment before, his stereotyped first question was: " Have you been 
sworn, sir?" If the witness appeared to desire to tell a plain story 
of the exact truth, he was allowed to do so without interruption. 
When, however, he manifested bias against Mr. Hardin's client, he 
did not escape so easily. When necessary he could press a witness 
as he would squeeze a sponge. He took no notes of the evidence, 
but relied exclusively on his memory, and that never failed him. He 
remembered not only the name of each witness, but also his particu- 
lar testimony to its minutest detail, as well as any peculiarity that had 



CONDUCTING THE TRIAL. 

marked its delivery. Attorney-General Garland thu ilea of him 

in this respect : 

"His memory was most remarkable as to facts, dates, names, I 
authorities, and references. I have often heard him say that everj I i 
should train himself not to take notes of anything i onne< ted with trials, 
this he continually practiced. He mentioned an oc< urrence in a l< 
in which he and Judge Rowan were opposing counsel, and in win. I, I 
(as was his custom) took minute and elaborate notes. When his time i 
on to speak, his notes were mislaid and could not be found. On thai 
account, he was unable to proceed, and the trial was postponed some hours 
to enable him to find his missing notes." 

An incident related by the late Samuel T. Houser, a lawyer of 
Falmouth, strongly illustrates Mr. Hardin's powers of memory. 

" He and I," said Mr. Houser, "were members of the State Senate in 
183 1, and were together on the committee of apportionment of representa- 
tion. In speaking of his familiarity with the geography of the State and its 
different counties, he said he could 'bound' everv one from memor\ (there 
being at that time eighty-three). This being questioned by a member, he 
offered to stake a dozen of wine. The wager was accepted and a map 
brought. Mr. Hardin began on the Virginia line and ' bounded ' every 
county to the Mississippi river without hesitation or mistake." 

"In his management of a case before a jury," says Colonel J. P. 
Barbour, of Lebanon, "he had no equal. I lis theory and statement 
of a case, the sagacity with which he c.Namined and cross examined 
witnesses, the accuracy with which he recollected the evidence, and 
the ingenuity with which he made all the facts adduced, sustain his 
theory for the benefit of his client, were constant subjects of remark." 
While opposing counsel addressed the jury, he was accustomed to 
pace to and fro outside the bar in rapt revery, head bowed, one hand 
thrust behind him, with the other gesticulating, muttering to himself 
in soliloquy. When his opponent made statements not warranted by 
the evidence, he frequently interposed, though not always. Some- 
times when hard pressed, he would quit his promenade without the 
bar and seat himself so as to look into the face of the speaker, ol 
manifesting a degree of excitement that required seeming eflFoi 
control. 

It was, however, only when he came to argue a case that he mani- 
fested his highest skill and power. Sometimes he began as if a tor- 
rent, checked and obstructed in its flow, had suddenly broken bound-, 



494 



BEN HARDIN. 



bearing all before it. Most usually, however, he began with more 
deliberation. Straightening his stalwart form to its full height, usu- 
ally standing beside a table, with the finger tips of one hand resting 
thereon — (his crippled hand) — one foot somewhat advanced, features 
fixed, with expression of earnest and deep thought, the body slightly 
inclined forward, a few moments of absolute silence, nervously com- 
pressing the lips, and then he began. 

Mr. Webb (in his "Life of Powell") says Mr. Hardin's voice was 
sharp and piercing, and that he was strongly energetic, both in action 
and delivery. Wit, drollery, sarcasm, invective, these were his chief 
forensic weapons, and terrible weapons they generally proved in his 
hands. Differing from this in one particular, at least, is the testimony 
of Mr. R. J. Browne, who in early life was his contemporary: "Mr. 
Hardin had a soft, agreeable voice. When the court ruled against 
him on a point, he had a most melifluous way of saying, ' I acqui- 
esce.' " Of Mr. Hardin's manner in the court-house, Mr. Webb 
remarks : 

" At home it was a common occurrence with Mr. Hardin to address the 
court or jury in his shirt- sleeves. When engaged in legal work outside of 
his own district, especially in places where he was little known, he was obser 
vant of the proprieties of his position until he happened to become heated 
in argument, and then, first, his cravat would be snatched off and cast aside; 
next, the collar and wristbands of his shirt would be unbuttoned and thrown 
back ; and, finally, long before he came to the peroration of his discourse, 
especially if the weather was at all sultry, off would come his coat and waist- 
coat, and then, as nearly in pitris naturalibus as it was possible for him in 
decency to go, he would thunder out invectives against some unfortunate 
litigant, or some still more unfortunate criminal, in a style that was not 
unfrequently fully in keeping with the tastes of his rough auditory." 

Mr. Hardin's art as an orator was in concealing art. Possessing 
histrionic talents of a high order, yet he spoke not to please but to 
convince, and if he pleased it was but part of his plan for convincing 
his auditors. He subordinated every thought, feeling, and action to 
his theme, or to maintain the justice of his cause and the logic of his 
conclusions. He was an exceedingly earnest speaker. His capacity 
to endlessly involve and hopelessly to complicate and obscure the side 
of his adversary was only surpassed by his ability to make his own as 
perspicuous and clear as the meridian sun. The secret of his orator- 
ical power is not altogether plain. His manner was simple and natu- 
ral. When animated there was that about him that enchained the 



AN EARNEST AND EFFECTIV] ORATOR. 

hearer. He was not only impressive, but magnetic. On 01 

sion in a trial at Bardstown, he made a remarkable ; hich 

(possibly getting a hint from Bums' " Twa D he rep /hat 

various dogs about Bardstown had said concerning his client's 
saryand opposing witnesses. The speech consumed the greater part 
of a day. A farmer's wife, living a few miles in the country, had 
that morning dispatched a negro boy to town on an important errand, 
with orders to hasten home. But the day wore away and the m 
senger failed to return, and only did so at night-fall. It was in slav- 
ery times, and the boy was clearly in for a Hogging. The wife 
requested her husband (who had also been in town all day) to punish 
George for disobedience. The latter was marched out ; but his n 
ter concluded he would first hear what the negro hid to say in 
defense. "I'll tell you how it was, master," he replied. " I went to 
town and was starting home and I heard Mr. Hardin speaking I 
put my head in the courtdiouse door just to hear what he was talking 
about. He was telling what some dogs had said, and I got to listening. 
and the first thing I knew it was night." " Well, George. his 

master, " if that is what kept you, I will have to let you off this time. 
I was caught by that same dog speech myself." It would hardly 
unwarranted hyperbole to say that he held the attention of his hearers 
like an enchanter. 

Some critics have found fault with his elocution. There was one 
virtue about it, however, covering many sins against cadence and mod- 
ulation, and that was. he could be heard with ease and understood l>v 
all. He used language not for its beauty, but to clothe rather than 
conceal a thought, and his words poured forth like newly mil 
coins. At home or abroad there was a freshness about his genius 
that drew and held crowds wherever he made a speech. When a i 
demanded it, and he was fully aroused, he vindicated his right to be 
called the "Kitchen Knife," a soubriquet conferred by John Ran- 
dolph. " He cut and tore sometimes unmercifully," says an old law- 
yer. His denunciations, says another, were often " as tire applied to 
the flesh." But cases of this sort were exceptional. Ordinarily gi 
temper flowed through all his addresses. Not unfrequently he pointed 
an argument with a verse from the Bible, or the lines of a familiar 
hymn, or a snatch of poetry from Burns or Homer. 

His reasoning powers were vigorous and versatile. If tra 
cause to effect and effect back to cause ; and discerned every element 
of a proposition, the weight and character of each, and by intellectual 



49 6 



BEN HARDIN. 



re-a< T ents reduced it to its last analysis with the skill of a logician of 
the schools. In his faculty of clear and logical statement of every 
question involved in a case lay one of the secrets of his power. But 
in the exercise of this talent he had rivals whom he did not encounter 
in another field peculiarly his own. It was once said by that gifted 
orator, Thomas F. Marshall (repeating what others had said before 
him), that no one had ever been able to write a parable, or even 
approach those of the New Testament, from which premise he argued 
the divinity of their author. As a means of illustrating and enforcing 
a proposition and producing conviction they exceed all arts of human 
logic. Undoubtedly from hence, Mr. Hardin obtained the hint for a 
mode of argument that he employed with powerful effect. His 
speeches were largely a series of narratives of events apart from his 
subject, but which led the mind unconsciously to a conclusion bearing 
directly on his theme. He did not travel the direct road of the logi- 
cian, in which the hearer from prejudice or bias sometimes advances 
unwillingly, but amused and entertained him with circuitous detours, 
now and then coming suddenly into the pathway of his theme only to 
depart again and again return, until, at last, the logical end was reached, 
and with it unavoidable conviction, and reached in such a way that no 
adversary could turn about and retrace the route. 

He was free from the folly that besets crafty minds, who, not will- 
ing to rest their case — even a good one— on the strength of its merit, 
tax their utmost ingenuity in hatching sophistic reasons which they 
mix indiscriminately with better ones and thus weaken all. Said 
Judge Bridges (one of the brightest lawyers that ever adorned the cir- 
cuit bench) "if there were a hundred points in a case, R W 

would never omit one of them, and possibly touch them in the inverse 
order of their logical arrangement, while the simple statement of a 
case by Ben Hardin was of itself often an irrefutable argument." As 
once said of Sargeant S. Prentiss, so it may be affirmed of Mr. Har- 
din : " He avoided the miserable error into which so many lawyers 
fall, of making every possible point in a case, and pressing all with 
equal force and confidence, thereby prejudicing the mind of the 
court and making the jury believe that the trial of the case is but run- 
ning a jockey race." 

When he had a bad case, or was beset in argument, he would 
sometimes address a jury for a half-hour without the slightest allusion 
to the case. At such times, blunders of opposing counsel, contra- 
dictions, improbabilities, and discrepancies in the evidence all had due 



MANAGEMEN1 OF A BAD CAS1 . 

attention. He insinuated facts before the jury by obscure rel 
only understood by himself and the jury, or some member of it. But 
if there was no remedy for the infirmity of his case in any of th 
resources, he turned to that dernier resort of lawyers in sue':; 
gencies — the constitution and the principles of eternal justice. 
following case referred to by him in the coustitutiMU.il convention of 
1849, illustrates how a bad case may sometimes be saved: 

" I recollect once that in Marion county some twenty men were indi< 1 
for keeping what was called a 'Spanish needle.' I argued before the 1 
that the punishment was too violent and disproportionate to the 1 
was cruel and inhuman. The jury brought in a verdict something like this : 
'We, the jury, find the defendant not guilty; tor. although we know he 
played the wheel, we consider the punishment cruel, extravagant, and dis 
proportionate to the offense.' Judge Green sent them hack, and th 
returned with this verdict: ' We. the jury, know the man kept tin- wh 
but in our consciences we do not believe him to be guilty under the 
tuition.' They were sent back again, and on the fourth day they returned 
with an unqualified verdict of not guilt \ 

It is said that some of his finest efforts were put forth where the 
amount involved was trivial. As a rule, however, he gauged his 
efforts to suit the emergency, using as much, but no more, power than 
was necessary for success. 

He was inclined to regard the Court of Appeals as the rcfe 
weak lawyers — as a dilatory tribunal whereby the administration of 
justice was delayed and obstructed. In his opinion, circuit courts \\ 
adequate to attain all the practical ends of justice. " I have argu 
case," said he, " before a court and jury, and yet one of th >urt 

of Appeals gentlemen, after worrying the court a whole day taking 
down the evidence, would so distort and garble it that the case would 
not appear in the court above as below, and by that means the ju 
ment would be reversed." 

Nothing better illustrates his genius and power than the impr 
he made on those who heard him, of all classes and of every d< 
intelligence. While he entertained the scholar, the same speech 
equally attracted, delighted, and instructed the ignorant In the 
region where he lived and practiced, his great rivals, Rowan, V 
line, etc., are spoken of with unqualified praise to this day, and the 
survivors of that generation delight to dwell on their appearance, their 
manner, their talents, and characteristics. But when Mr. Hardin is 
alluded to, it is always to repeat some remembered thought bearing 



♦Constitutional Debates, 826. -y -> 



498 



BEN HARDIN. 



the unmistakable stamp of his genius. When Cicero spoke in the 
forum at Rome, his hearers went away applauding his oratory, but 
when Demosthenes addressed the Athenians in one of his stirring 
philippics, the cry of his auditors was, " let us march against Philip." 
Without derogating from their great abilities, it seems that his rivals 
are best remembered because of an imposing personality, while Mr. 
Hardin himself survives because he wrote his own thoughts indelibly 
in the hearts and memories of his generation. 

The testimony of a number of persons has been collected and 
examined as to his character and ability as a lawyer. Many of them 
expressing the same ideas have unconsciously employed the same lan- 
guage. There are none who dispute his pre-eminence at the bar. 
Many speak of him as a sound lawyer, a powerful and skillful advo- 
cate, as one of the readiest and best educated of elementary lawyers, 
as the best circuit court practitioner of his day. Some call him the 
Colossus of the Kentucky bar ; others, the Goliah of prosecution ; 
another, "the last of the race of giants. " 

He once remarked of himself, " I reckon there is not a man more 
intimate with the operation of the circuit courts of Kentucky than I 
am, and there will not be for fifty years to come.'' This was not a 
mere boast, nor intended as such, but the simple statement of a plain 
fact. He was in truth a legal philosopher, deeply imbued with the 
wisdom and learning of the law.. To him the law was a moral science 
governed by principles as unerring as any in the moral world, and of 
as easy and certain application. He was, in all respects, an original 
man, whose character can not be measured by ordinary standards. 
His talents were so dissimilar to those of his distinguished rivals and 
colleagues that contrasts and comparisons are vain. While there is 
no one found with whom to compare him, yet it may be that the 
rugged virility of his intellect bears more than a fancied resemblance 
to that of the late Jere Black, and that both in many of their charac- 
teristics, and especially in a certain mental and moral manhood, are 
of the class whose best type was the great Scotch philosopher — 
Thomas Carlyle. 



ATTACKING "OLD BEN." 




CHAPTER XXIX. 

COURT-HOUSE REMINISCENC1 

|NE who from boyhood had known Mr. Hardin well and heaid 
him argue some of the celebrated cases in which he was at dif- 
ferent times engaged, remarked that he had never entered a court- 
house without thinking of him, and involuntarily, though vainly, 
ing the eye about to see who might compare with him. During his 
life few were the court-houses he entered where he was not .1 central 
figure. When not engaged as counsel in a trial, he usually listen) d .it 
its progress, especially if he felt any interest in the matter in emit, 
the parties, or their attorneys. Instances occurred where he took p.irt 
for the first time after the testimony was concluded. 

When he felt no interest in court proceedings, he frequently 
engaged the bar-loungers in conversation. He quickly gathered an 
attentive and admiring coterie on such occasions. Narrative and am 
dote were the staple of his talk, and now and then the merriment he 
produced, attracted reproof from the court. Feeling himself culpable 
at such times, he would apologize, with assurances, courteous and vol 
uble, that no disturbance or disrespect was intended. 

Mr. Hardin's skill and success were the envy of the younger mem- 
bers of the bar. With the latter it was an ever-recurring question as 
to how successfully to deal with "Old Hen." They discussed it 
among themselves and devised many plans of action, but like the mice 
who resolved to bell the cat, the difficulty was to execute them. A 
couple of young lawyers discussing this subject on one occasion con- 
cluded that he might be overcome or subjugated by launching all the 
weapons of invective and sarcasm upon him — in short, by giving him 
a sound abusing. The idea was, that if assailed by all young law) 
in this way, it would intimidate him and render him less formidable. 
One of the young conspirators (now one of the fust lawyers of the 
State) excused himself on account of ancient alliances "i friendship 
between his own and Mr. Hardin's family — but he encouraged his 
young friend to try the execution of the project. Shortly after, a 
came up where T and Mr. Hardin were opposed. Without any 



;oo 



BEN HARDIN. 



special relevancy, the former began a personal tirade, of which the 
latter was the object. Mr. Hardin listened at first with surprise, but 
at last with evident amusement. In reply, he inquired what he had 
done to the young gentleman to so incense him. He was surprised at 
being so vigorously assailed, because unconscious of having offended. 

He finally concluded that T supposed that he (H.) envied him — 

envied his lawyership and oratorical ability. Assuming an air of 

child-like simplicity, he assured T that he did not envy him. He 

turned to the court and earnestly protested that he did not and never 

had envied T . He addressed the bar with pathetic seriousness, 

and hoped they would not do him the injustice of suspecting him of 
envy or jealousy. By this time everybody was in a titter, and poor 
T was cured of attacking "Old Ben."' 




Yea, Yea, Benjamin. 

A very large number of readers throughout Kentucky and Middle 
Tennessee have heard of the chief character in the following story : 
Leonard Jones, better known as Live- Forever Jones, was an eccentric 
character who had notoriety in Mr. Hardin's day, and afterward, 
because of his religious creed, professing to believe that by leading a 
life of absolute sinlessness, his earthly existence would be prolonged 
forever. He had not originated this doctrine, but was the convert of 
one Miller, who had proclaimed it before him. and possibly had the 
honor of being its discoverer. But, finally, the latter died, just as 
all sinful mortals inevitably must. Among his last requests, one was, 



SPIRITUAL AMELIOK WluV r Q , 

that Jones should preach his funeral sermon. " It was the sorest I 
I ever performed,'' said he, alluding to it. 

Jones was without special calling, dabbling to some extent in p 
tics, preaching occasionally, but delighting above all things in a law 
suit. By asserting pretended claims to lands in various parts of the 
country, he managed to embroil himself in numerous control 
He wore his hair and beard uncut, assumed an austerity of manner, 
and affected a peculiarity of speech that gave him some countenai 
with the ignorant, but Mr. Hardin regarded him as an impostor, who 
was more knave than fool. He was sometimes engaged in law-suits 
to which Jones was a party, but almost always adversely to him. and 
on such occasions he invariably handled him without gloves. [ones 
prosecuted an appeal from an adverse decision in one of tin- 
to the Court of Appeals, and Mr. Hardin attended in person toar^ue 
it. Jones was also present. Meeting Mr. Hardin: " Friend Benja- 
min," says he, "I know thou art a severe man in thy speech, hut 1 
wish to give thee liberty to be as severe with me as thou pleasest, l"i 
I verily believe it will be good for my soul." Mr. Hardin replied that 
he would do his best to help him in that way. The ease was called, 
and the argument begun. After disposing of the facts and law, Mr. 
Hardin began his task of ameliorating the condition of Live-Fore> 
soul. He cut and slashed and tore and macerated his victim, wh^. 
now and then, emitted a resigned groan. To such immoderate length 
did he go, that the court, at the instance of opposing counsel, finally- 
interrupted him with the admonition that he was exceeding all the 
bounds of legitimate debate. "If your honors please, I am well 
aware of that," was the response, " but what I have been sa) ing has 
been with the entire approval of the appellant himself, who is now 
present — isn't that so, Mr. Jones?" (turning to the latter). 

"Yea, yea, friend Benjamin, yea, yea, but still thou art very 
severe." 

Live-Forever Jones survived the late civil war, and, after a life <>f 
privation, died in extreme old age.* 

A skillful lawyer always carefully explores the popular pulse wh< 
public sentiment promises to be a factor in the conviction or acquittal 
of his client. That Mr. Hardin neglected no precaution «>f this kind 
the following incident will serve to illustrate: Although Cy Ilultz 
was always his client. Mr. Hardin regarded him as one of the « 
of men. Between the laws of the land and Cy there was ,\n irrepi 



-He died in the city hospital at Louisville about 1870, and - er»on 

county, by the side of his brother, Laban Jones, known as the " bleating premchei 



502 



BEN HARDIN. 



sible conflict His misdoings had become notorious, and he had 
escaped the clutches of the law so often that public sentiment finally 
rallied and demanded that something be done with him. At last, 
Hultz added another to his catalogue of "crimes, misdemeanors, and 
breaches of the penal laws," by shooting one of his fellow-citizens. 
Death did not ensue, but an outraged public demanded that the law 
should inflict the most condign punishment on the offender. Mr. 
Hardin was again retained for the defense. "He did not give bail," 
said Mr. Hardin, "and I did not want him to do so, preferring that 
he should remain in jail. For awhile, every time he was brought 
out I would walk with him. I found that there was a strong preju- 
dice against him, rendering it necessary that I should get a continu- 
ance. After lying in jail for two winters, and becoming frost-bitten, 
he was brought out in the spring, and as we passed along I could 
hear the people saying, ' Poor Cy, he has suffered enough, God knows 
— and besides, he fought the British, too,' and similar expressions 
of commiseration. Said I, ' Cy, now is the time ; I shall clear you 
now.' The trial came on, and the jury, after five minutes deliberation, 
declared him ' not guilty.' " 

It is not to be denied that in his arguments to the jury, Mr. Har- 
din sometimes, as the lawyers phrase it, " got out of the record, '' or 
in other words, stated facts not mentioned by the witnesses, and based 
arguments upon them. These outside facts he would manage to get 
before the jury in such shape that that tribunal could not be induced 
to disregard them. In vain might opposing counsel object, and 
equally in vain would the court admonish the jury to be governed by 
the evidence only, for so thoroughly would belief be fixed that the 
jury were morally incapable of resisting their force. The following 
case is a happy illustration of Mr. Hardin's peculiar ability in the 
direction indicated. 

The prosecution against Brashear for disturbance of religious wor- 
ship had its origin in peculiar circumstances. The defendant was an 
elderly bachelor of considerable estate, residing not far from West 
Point. He was not a religious man, but was generous in aiding pub- 
lic enterprises, and had been one of the largest contributors to the 
erection of a church not far from where he resided. On one occasion, 
Rev. Moses Akin, a protestant minister — who was at different times 
a member of more than one denomination in his day — commenced a 
series of meetings in that church, with a view of reviving the work of 
the Lord. Akin was famous as a revivalist. He was of giant pro- 



BROTHER AKIN. cqj 

portions physically, yet, notwithstanding his great size, lie- could, 
proper occasion, manifest a meekness, gentleness, and a lamb like 
spirit that could be reconciled with no other theory than that he had 
been the subject of divine grace. He had a powerful, yel . h.n 

pleasing, oratory, the effect of which was not a little augmented by 
his personal magnetism. Although by no mean. .1 learned man. to 
strong common sense he added no little shrewdness and cunni 
well as a most excellent knowledge of human nature. I t phys- 

ical strength he added abundant courage. He vt i addn 

and it took him but a short while in a community where h<- was little 
known to win with the Christian portion thereof reputation f. 
sanctity. Brother Akin was from Green county, and in the region 
where he was best known, so many stories of conduct inconsistent 
with his religious professions had currency, that as a prophet he was 
sadly without honor. 

Now, while the meeting had begun under the most auspicious cir- 
cumstances, and the religious people regarded the words of tin r< ver- 
end brother as those of a teacher in Zion, yet there were gainsaying 
persons who repeated those naught>- Green county stories. An: 
this latter class was the defendant Brashear. It was not long Ik fore it 
came to the ears of the preacher that thus and so was being said, and 
that Brashear was one of those who said it. The latter intimated that 
the public was being imposed on by a wolf in sheep's clothing, wh 
purposes were neither Christian-like nor honorable. Curiosity or ., .m<- 
other less commendable feeling prompted the defendant to attend 
ship on one occasion. Brother Akin that day shaped his discours 
as to have a personal bearing on the spiritual condition of the unr< 
pentant Brashear. After the services ended, and as th< "ion 

was dispersing, Akin accosted the latter and requested .1 private inter 
view at his apartment near by. Reaching and entering the room, the 
preacher locked the door, and informed his guest that he had brought 
him there to pray with him, and requested him to kneel. Bra-' 
declined his prayers, and refused to kneel. The preacher told him 
that if he persisted in his refusal, he would have to whip him. which 
he should regret. Brashear, although a man of cour. 'hat 

resistance with such an antagonist was useless, and so compli 
under these peculiar circumstances Akin prayed tor him moa 
vently, after which he allowed him to depart. 

The following day, as the congregation w imbling 

not a little astonished to see Brashear seated in the pulpit. There he 



504 



BEN HARDIN. 



sat, apparently having no other thought than observing the congre- 
gation as it entered the door at the farther end of the building. 
While the people were puzzled to understand this strange conduct, 
yet their respect for a worthy citizen caused them to suppose that 
timely explanation would be made. At length the sanctimonious par- 
son, with bowed head and absorbed air, entered and advanced with 
long strides toward the pulpit. Suddenly the quiet Brashear sprang 
to his feet, and presenting a double-barrel shotgun, halted the minis- 
ter, and told him that he would regret to shoot him, but would cer- 
tainly do so, unless he immediately got out of that church. There 
was that in the manner of his assailant that forbade parley, so turning 
on his heel, Akin silently walked out, followed by an agitated congre- 
gation. 

Out of this simple transaction arose the prosecution for disturbing 
religious worship. Mr. Hardin was retained for the defense, and in 
due time, the trial came on. Akin himself not being a witness, and 
the defendant not being permitted to testify, the affair of being 
"prayed for" was not given in evidence. A serious case, conse- 
quently, was made out by the prosecution. Mr. Hardin began his 
argument with the statement that he had never been employed in a 
case more entirely to his own heart than the present. He had known the 
defendant all his life, and while making no hypocritical professions of 
being better than other men, yet he was known by the whole com- 
munity to be a man of the most scrupulous personal honor. He was 
a good citizen, a good neighbor, and a good man. He had given 
substantial encouragement to all public enterprises, and the poor 
never had a better friend. He was an honest man, a brave man, and 
of scrupulous veracity in his every utterance. 

He thereupon proceeded to recite the transaction of the defendant 
being "prayed for." Just as he had concluded it, the attorney for 
the prosecution objected, because nothing of all that was in evidence. 

"What counsel suggests is very true, gentlemen of the jury," said Mr. 
Hardin, "and, of course, you will not regard the statement as to that affair 
as evidence, but I repeat it to you precisely as I received it from my client, 
and I would be willing to stake my soul's eternal salvation on the truth of 
every word of it, and, knowing the defendant personally as you all do, 
you can not for an instant doubt his veracity." 

Being again interrupted, he assured counsel and the court that he 
was doing his best to keep inside the evidence, but so entirely was he 



THE WATSON CASE. 






satisfied of the truth of everything his client had communicated, that 
he found difficulty in avoiding allusion to it. He next turned his 
attention to the preacher in the case. 

" Who, gentlemen of the jury," said he, "who is Moses Akin? '11 
is no man who has greater respect for the religion of J is I hrist than I 
have, and no one who feels greater reverence for its worth) ministers than 
I do, but for these wolves in sheep's clothing — for these < reatures wi- 
the livery of heaven to serve the devil in' — for such nun as Moses Akin I 
feel that I have not sufficient descriptive powers to do tin- subjei t justi< i 
know him, gentlemen; have known him tor years, and know him well. 
What I am about to say is not evidence, and I warn you not to consider it 
as sueh. You may search the pages of sacred and profane history in vain to 
find an example of licentiousness that can approximate this in. in M 
Akin. Go with me during any spring to Green county, and I will show yon 
this canting hypocrite in his true character. I will show him to you, as I am 
reliably informed he has been often seen, capering around in the wood 
the waters of Brush creek, arrayed as Adam was before the fall, for the 
diversion of certain parties of the same faith and order then and there assem 
bled." 

Being again interrupted, he begged pardon of the court if he hail 
said anything that was improper, but the fact was, that when he found 
how this man Akin had imposed on a confiding community under the 
guise of a preacher for the manifest purpose of practicing his licen- 
tious arts on its wives and daughters he felt so indignant that it was 
impossible to restrain his feelings. In view of all the surrounding 
the case (he continued), he regarded any argument of it superfluous, 
as he had no doubt the jury shared the indignation he felt, and so he 
would trust his client's case with them. The jury readily brought in 
a verdict of acquittal. 

Ordinarily, it was in vain that client, adversary, or witness attempl 
to deceive Mr. Hardin. His judgment of human nature rarely erred, 
but he was sometimes imposed upon. The following incident will ■ 
strongly show how it is sometimes better to tell an unpleasant and 
damaging truth than the most adroit falsehood : 

Mr. Hardin defended the Watsons (father and son) for killing Coff 
man and Courtney. This murder was committed in the 1 evel 
Woods," of Larue county. Coffman and Courtney were found i 
in the forest from gunshot wounds. The evidence against the \\ a 
sons was entirely circumstantial— the chief link of which was fin 
in possession of one of the prisoners a piece of cloth from which was 



506 BEN HARDIN. 

cut a bullet-patching found near the dead men. The elder Watson 
was convicted and executed. The younger was released on bail, and 
after the conviction of his father fled the country. Although, subse- 
quently, convinced of the guilt of both, Mr. Hardin said he could have 
so managed as to prevent conviction if he had not been misled by the 
elder Watson's assertions of innocence. He practiced the case on 
that theory alone, and was wholly unprepared to meet or parry the 
facts showing guilt, which he thought he could have done if he had 
known it to be necessary. 

It sometimes happened to Mr. Hardin, as it has happened to all 
the members of the worthy guild to which he belonged, that he had 
a bad case. As death approaches, nature kindly blinds the faculties 
and dulls the sensibilities. Similarly, the lawyer with the most 
wretched of bad cases, is usually blissfully unconscious of his dilemma 
and the shock of defeat only arouses him for the first time to absolute 
consciousness. When hard beset in a bad case, few were better sup- 
plied with expedients than Mr. Hardin. If the contemplation of his 
own side of the case afforded no consolation, he carefully inspected 
that of his adversary, and took pleasure in ridiculing the very 
strength of the latter. 

R was a young lawyer at Bardstown, who had been employed 

by his uncle to bring an ejectment suit against a mere "squatter," 

who, without any sort of claim had entered upon his land. R was 

inexperienced and diffident. The case was called for trial, and Mr. 
Hardin announced that he appeared for defendant. The plaintiff was 
wholly unprepared to prove title, nevertheless, the trial proceeded. 
Plaintiff's case was stated by his counsel. He explained to the jury 
that the defendant had entered on the land with no claim of rig-ht, 
whatever. He did not claim to have bought it from any one or to 
have paid anything for it. He then proceeded to state how plaintiff 
had derived title by grant from the Commonwealth to those under 
whom he claimed and by subsequent regular conveyances. When Mr. 
Hardin came to reply, he said: "The gentleman is mistaken in sup- 
posing that defendant does not claim title to the land. On the con- 
trary, he does claim title. It was true he did not have a paper title, 
like plaintiff pretended to have, but which he would not be able to 
show, but defendant traced his title to a far higher source. He 
claimed title direct from Almighty God." As plaintiff failed to make 
out a case, Mr. Hardin's client was not called on to exhibit his title 
papers. 



CLEM HILL S AUDACITY. 507 

" I first heard Mr. Hardin argue a case before Chancellor Bibb, at 
Louisville," said the late Andrew J. Ballard. " Hite and Ferguson 
were names involved in the controversy. He was notably clear in 
presenting his side of the case. Occasionally his remarks assumed a 
humorous character. I recall an anecdote he used to illustrate a point 
in argument. A farmer had rented land to a tenant to cultivate in 
corn. After the corn matured, the landlord suggested a division, that 
the tenant gather it, and, retaining every two loads himself, deliver the 
third to him, the agreement being that the landlord was entitled to a 
third of the crop for rent. Sometime afterward the landlord, receiv- 
ing no corn, called on the tenant to know the cause of failure. The 
tenant explained that when he came to gather the corn, that there was 
only two-thirds of a crop, so none was left for the landlord." 

The gentleman alluded to in the following incident yet lives, wear- 
ing years and honors alike gracefully : 

"The first time I ever saw Ben Hardin," says Attorney-General 
Garland, "was, as I now remember, in February or March, 1847, at 
the trial of Wilson for killing Pottinger, in the Nelson circuit court — 
Mr. Hardin, with others, being for defense. The trial was an inter- 
esting one, both Wilson and Pottinger having many friends and rela- 
tions of influence. It lasted several days. Mr. Hardin, as leading 
counsel, made a powerful speech. Clement S. Hill, of Lebanon, was 
retained to prosecute, and he closed the case with one of the finest 
speeches to which I ever listened. After he had finished, his friends 
most warmly congratulated him on his effort. At this juncture, Mr. 
Hardin came up and said : 'Clem, d — n it, I knew you could do it, 
but I did not think you had the audacity to do it.' " 

Mr. Hardin, when the notion seized him, could lay aside dignity, 
and impersonate any character he chose. Garrick had not greater 
art in personal transformation. His mimetic and histrionic powers 
would have assured him success and renown in another sphere than 
the law. The reader is indebted to Governor William Johnson, of 
Bardstown, for an illustration of this trait. Mr. Hardin appeared for 
defendant in an action of detinue, involving title to some corn, in 
which Thomas W. Riley and William R. Grigsby represented the 
plaintiff. The case turned on the testimony of a single witness, one 

\Y , who manifested an extreme willingness to aid the plaintiff. 

On the conclusion of the plaintiff's testimony, Mr. Hardin moved a 
non suit, on the ground that plaintiff had failed to prove demand. 
The point was well taken, but plaintiff's counsel besought the court 



5<DS BEN HARDIN. 

to open the case again, as they were, as they said, prepared to prove 
demand by the witness who had already testified, and that his failure 
to so testify had been through their own oversight. This Mr. Hardin 

strenuously resisted, insisting that W had shown a willingness to 

recklessly testify to anything for the plaintiff, and should not be heard 
again. While plaintiff's counsel prolonged the debate, the witness 
himself unconsciously manifested his interest in the result by hanging 
over the bar, with fixed gaze and gaping mouth, an attentive listener 
to all that transpired. Mr. Hardin, from his seat within the bar, dis- 
covering this, turned his eyes to the witness and gazed at him with 
such intentness as to excite general attention. The eyes of the wit- 
ness finally met those of Mr. Hardin, and for a few moments it 
seemed a contest as to which should look most searchingly at the 
other. An amused feeling began to steal over the spectators, when 
suddenly Mr. Hardin's eyes took on an idiotic expression that seemed 
more than ever to puzzle his competitor. At this point, Mr. Hardin 
sprang to his feet, and offering his hand to the astonished witness still 
more astonished him, and at the same time convulsed the spectators, 

by the cordiality of his greeting — "Good morning, Mr. W ! " 

The non suit was granted. 



THE GROWTH OF SELF GOVERNMENT. 5O9 



CHAPTER XXX. 

THE CCEUR OE LION OF REFORM. 

TH E first Constitution of Kentucky was framed in 1 792, the year she 
was received into the sisterhood of States. It was soon discovered 
to be decidedly defective, and to contain provisions exceedingly 
obnoxious to public sentiment. Among other things, it allowed free 
negroes to vote, which of itself was sufficient, according to the opin- 
ion of that day and long afterward, to warrant a new one. But other 
defects existed of a more substantial character. In 1799. after an 
exciting struggle, a convention was called and the second Constitution 
adopted. It continued the fundamental law for fifty years. It had 
not been long in force, however, before reformers proposed another or 
a revision of the one existing. As early as 1803 a member of the 
Legislature moved the subject of calling a constitutional conven- 
tion, but the motion met with no favor, and did not even receive a 
second. 

"I was myself," said Mr. Hardin in a public speech in 1850 at 
Frankfort, ' ' one of your representatives in one house or the other 
during a period commencing in 18 10 and ending in 1833. I have no 
doubt that during that whole period I voted every year against a bill 
to take the sense of the people on the proposition to call a conven- 
tion." The efforts for a convention did not cease after 1833. In 1838 
the Legislature, at length, submitted the question to a vote. There 
is no doubt that the result of the Old and New Court contest in 1S25 
had imparted fresh vigor to the constitutional reformers of that period. 
If a Legislature was impotent to remove obnoxious members of a 
court, not so (it was argued) was the strong arm of a constitutional 
convention. "Sir,'' said Charles A. Wickliffe in a speech in 1837, 
opposing this proposition, " this convention project, disguise it as you 
may, is the warfare commenced in 1824 against the independence of 
the judiciary." 

Indeed, the chief argument for constitutional change in 1838 was to 
deprive the judges of their irresponsible life tenure by making them 
elective by the people. Objections were made to the county court 
system ; to the life tenure of sheriffs, clerks, etc.; to the uncertainty 



5io 



BEN HARDIN. 



of succession, if the governor and lieutenant-governor both died in 
office ; the location of the seat of government at Frankfort — but, 
after ail, the chief grievance was the "irresponsible" judiciary. The 
result of the vote in 1838 was overwhelmingly against the convention. 
The New Court party before that time had become the Democratic 
party. The Democratic party in turn had become the party of con- 
stitutional reform. From 1838 to 1847 the State was divided into two 
great parties — Whig and Democratic. The former maintained its 
uninterrupted ascendancy in State affairs. It regularly elected the 
governor and maintained a working majority in both houses of the 
Legislature. Under the Constitution of 1799 nearly all offices of 
honor and profit in the State were appointive, either by the governor, 
by and with the advice and consent of the Senate, or by those whom 
the governor appointed. These appointments fell exclusively on the 
faithful. The Whig was the office-holding party of the State, and 
undoubtedly came to regard itself as having prescriptive rights, which 
it was little less than audacious for a Democrat to contest. 

But the Democratic party did not despair. Despite local defeat, 
yet in national elections it was more fortunate. Federal patronage 
was some solace for State proscription. It was in the minority, but a 
reliable and respectable minority. It was diligent, well-disciplined, 
compact, strong in its convictions, and moved with the unfaltering 
courage of a Roman legion. Defeated, routed, and overwhelmed at 
the polls, each individual Democrat came to the next election just as 
surely as the polls were opened. The Whigs blundered, as the strong 
always will, and the Democrats meekly made all the profit possible 
out of the blunders. The long proscription of Democrats as to State 
offices at length worked like a leaven. In some communities the only 
eminently qualified persons for important offices were Democrats. 
But these were always passed by for incompetent Whigs. 

Mr. Hardin, prophetically foreseeing the end, besought Governor 
Owsley to bestow offices only for meritorious qualifications. Hardin 
was the civil service reformer of his time, but his warnings were 
unheeded. All the while down to 1847, the Democratic party had 
held fast to its theory of constitutional reform — to the principle that 
all offices, legislative, executive, ministerial, and judicial, should be 
elective by the people — that power ought to rest in each local com- 
munity to choose the rulers who managed its affairs, and that officers 
were the servants of the people and should be immediately responsi- 
ble as such. In 1847, the constitution of 1799 was neither better nor 



A FOUL POLITICAL ATMOSPHERE. 5 I 1 

worse than it had been. It still kept the Whigs in power and the 
Democrats out. The governor, William Owsley, a man of integrity 
and long experience in affairs, was conducting government on the plan 
of his predecessors. How long this auspicious condition of things 
might have continued it is difficult to conjecture. But an event 
occurred in this year (the breach between Governor Owsley and Mr. 
Hardin, his secretary of State, narrated in a previous chapter) that 
was pregnant with results. It was suddenly developed that the gov- 
ernor was unpopular — that he had used his office for the benefit of his 
family — that too much power was centered in his hands, and thus 
one more argument for constitutional reform was evolved. All other 
reasons had been rejected as inadequate. This final one proved to be 
the missing quantity sought, which, added to the others, completed 
the demonstration. But more important than all this, the event 
referred to developed a leader of constitutional reform, without whom 
its success had still been uncertain. That leader was Mr. Hardin. 
Whether he acted from motives of pique and revenge, as was charged, 
or from a desire to crown the labors of his life by furnishing his State 
with a better form of government, as he often and earnestly asserted, 
matters not to posterity. In his Owsley speech (delivered January, 
1847) ne » f° r ^ ie fi rst time, perhaps, publicly announced his alliance 
with the reform party. 

"I now tell Governor Owsley, beware how you portion your children 
and your connections with the offices that belong to the people. They will 
not tamely submit ; they will rouse up in their majesty and assert their 
power. In monarchies, oppressions on the people when they can bear them 
no longer are resisted, and revolutions follow, as the history of most of the 
governments of Europe proves. In republics, the remedy is a resort to first 
principles to purify the government when inordinate abuses creep in. Power 
is always stealing from the many to the few. The Almighty has told us 
what to do in such a case by His own example. He sends winds and tides 
to purify the waters of the sea; He sends winds, rains, and thunderstorms 
to purify the air. So a convention will purify the foul political atmosphere 
in Kentucky. That is the remedy, and nothing but this will do. We. gen- 
tlemen, who are for a convention, ought to rouse up. when we look at the 
extravagant claims and pretensions of Governor Owsley, and when we see 
the public offices taken from more deserving men and given in marriage por 
tions to the governor's daughter, grandson, and others of the connection. 
I am tired of treading these ways. A remedy— and that quickly— must be 
applied." 



512 



BEN HARDIN. 



He was heralded by the convention party as the Coeur de Lion of 
reform. He recognized his position and accepted its responsibility. 
While the more discerning opponents of the convention and its labors 
freely acknowledged his leadership and its effect, others denied that 
theory of accounting for events. The partisan Whig anxiously sought 
some other reason for the convention scheme than the true one, as that 
was an implied condemnation both of the form of the government and 
the mode of its administration. The following from the pen of a con- 
temporaneous writer is a specimen of the views of the class alluded to : 

•'The plain history of the call of the convention is this: The party in 
the minority (the Democrats) originated the call in order to gain strength 
thereby. Having nothing to lose and everything to gain by a revolution, it 
was a measure of party tactics not without its merits. The majority party 
(the Whigs) fearing to lose strength by making the issue, though really in 
the main content with things as they were — and adverse to the project, were 
compelled, as they supposed, to apparently patronize the new movement or 
lose ground with the people. Thus a rivalry of zeal between the two con- 
tending parties for popular favor, rushed the movement through the two 
votings for a call of a convention. The minority then finding themselves 
out hurrahed on the question, had to cast about for some other issue on which 
to stake themselves. 

"It so happened that in the various projects for reform, a small party 
(the Emancipationists) inconsiderable in numbers, but attracting notice by 
their zeal, learning, and respectability, had mooted the question of a provis- 
ion in the Constitution for limiting the existence of slavery in the Common- 
wealth. And it so happened, furthermore, that this party was supposed to 
have their political sympathy with the majority party. And it so happened, 
finally, that at this very juncture, this same question of slavery had forced 
itself up as a party issue in national affairs, and was likely to become a mat- 
ter of intense sectional excitement between the North and the South. The 
opportunity for manufacturing capital was too favorable to be lost. Forth- 
with the minority magnified the little Emancipation party into an immense 
host, threatening danger to the Commonwealth, and threw themselves for- 
ward as the peculiar champions of the slaveholding interest, calling upon all 
who regarded the welfare of the State to lay aside all party predilections and 
unite against the common foe. The majority, again afraid to give their adver- 
sary this advantageous position in the popular eye, once more unwillingly 
entered the race for ' Buncombe,' and by one of those singular delusions 
which sometimes overtake parties, actually rushed into a league with their 
adversary, though having everything to lose, in order to make this sham fight 
with the imaginary common enemy. All the maneuvers of a militia training 
day were gone through with in due form, and a victory for the mighty allies 



WAR AN AUXILIARY OF REFORM. 5 1 3 

was announced — a victory over an enemy that, alas, had not been able to bring 
a corporal's guard into the field. Apart from party considerations, I very much 
doubt whether a majority of the people were in favor of a convention at all, 
at this particular juncture." 

Much of what this writer says is true, yet he evidently failed fully 
to comprehend the situation. He omits many of the important fac- 
tors whose aggregate produced the call of the convention. The annex- 
ation of Texas and the consequent war with Mexico were Democratic 
measures prominent at that particular period. So far from opposing, 
the Whigs of Kentucky generally fell into line with the Democrats on 
these questions. The annexation of Texas meant the extension of 
the area of slave territory. To oppose annexation was to join the 
enemies of slavery. Whigs and Democrats of Kentucky alike, shrank 
from such an attitude, thus involuntarily occupying common ground. 
Still another circumstance of the time powerfully influenced the coali- 
tion of parties. Hostilities with Mexico were at their height. The 
flower of Kentucky youth was sharing with General Taylor the fort- 
unes of war. The gales from the south-west brought tidings of a series 
of victories unexampled in all the annals of history. The heroism of 
Kentuckians in the field filled the bosoms of Kentuckians at home 
with a degree of pride no language could express. The story, also, 
came how Whig officers and Democratic privates vied with each other 
in deeds of daring, and mingled their blood on every field where their 
country had an enemy. For the time being, partisan differences were 
forgotten. The people experienced an exaltation of spirit. They saw 
with a clearer vision. Party shackles being loosened, they felt a fresh 
influx of the spirit of patriotism. They were in a happy frame to 
apprehend the argument for constitutional reform. It was no answer 
now to say that it was a New Court project. To seek to discredit it 
by calling it a Democratic scheme was to insult the dead heroes on the 
fresh battlefields of Mexico. There was really no alternative but to 
meet the reform question on its merits. 

In 1847 and 1848 respectively, addresses were published by mem- 
bers of the Legislature and other prominent citizens favorable to a 
convention setting forth objections to the old Constitution and propos- 
ing alterations. The first of these was signed by Mr. Hardin. The 
following is the summary of the one published in 1848: 

First : It was asserted that the old Constitution was defective in reg- 
ulating the apportionment of representation. 

33 



514 



BEN HARDIN. 



Second: Biennial instead of annual sessions of the Legislature were 
recommended. 

Third : Provision was to be made for the exigency in case of the 
deaths of both the governor and lieutenant-governor. 

Fourth : The powers of the governor were to be curtailed. 

Fifth : The mode of selecting sheriffs, clerks, and justices of the 
peace was to be changed, their terms limited, and the sale of offices 
prohibited. 

Sixth: Judges were to be made amenable to a practical responsibil- 
ity. 

Seventh: The mode of amending the fundamental law was to be 

simplified. 

Eighth: The power of the Legislature to create a State debt was 
to be limited. 

Ninth : The government belonged to the people, and so should its 
offices. The chances for obtaining them were to be equal. 

Mr. Hardin worked actively for the success of the convention 
movement by counsel and speech. He threw his soul into the 
contest, spreading enthusiasm among its supporters, and increased 
their numbers wherever he went. None of the many public 
addresses made by him on this subject, at this period, have been pre- 
served. It is not difficult, however, to gather the reasons that actu- 
ated him and that he urged upon the people. "One reason, among 
others," said he, "why I struck for a convention was the practice of 
the governor of Kentucky in filling all the offices with none but 
Whigs. I believe the offices should be distributed without reference 
to politics. We are a government of the people. In all our opera- 
tions the government is based upon the hypothesis that the people are 
competent to govern ; and if competent, how are they competent ? 
Why, by majorities ; and every government of a minority is a tyr- 
anny, call it by what name you will. We know that the State has 
been scandalized by the sale of offices. In two-thirds of the cases, 
the clerks of the circuit courts have bought their offices. 

' ' Where are you to vest the appointing power ? In the courts ? Do 
we not know that it is a general practice for them to select the mem- 
bers of their own families for these offices ? Such is my observation. 
Is it to remain with the governor, when we have seen how it has been 
exercised during the last ten or fifteen years ? Shall the members of 
the House of Representatives appoint State offices ? Surely not, for 
it would be a source of outrageous corruption." 



DOBSON AND DEATH. 5 I 5 

Mr. Hardin's faculty for invective, epithet, and ridicule was not 
idle. The advocates of a convention were called radicals — the mob 
— and Jacobins, by their opponents. On the latter were retorted 
"officeholders" and "Old Hunkers." 

"I understand," said Hardin, "the old hunkers to be those who hold 
on to office until God takes them away, and as Jefferson said, ' they scarcely 
ever die.' How long may a man hold on to office? Fifty or sixty years I 
suppose. I know men who, by themselves or vendees, been in office sixty 
years, and are now precisely like old Brother Dobson. Dobson is repre- 
sented as a handsome young man, married at the age of twenty-one. On 
the night of the wedding, there was a knocking at the door. A servant went 
and came back and told him that a stranger wished to see him. Dobson 
went and inquired who he was and what he wanted. The stranger replied, 
• I am Death, and I have come for you.' ' My God,' said Dobson, ' you 
have called out of time.' Said Death, ' I know I have called in rather a 
bad time, I will wait a little.' In sixty years he came again, and again he 
was asked what he wanted. And he replied, ' I have come for you, Mr. 
Dobson.' ' Good God,' said Dobson, ' have you come; I did not expect you 
so soon as this.' So it is with the officers." 

Although in 1847 and 1848 Mr. Hardin was engaged in large prac- 
tice, yet measures of reform were the chief subjects of his thought and 
labor. To his zeal, skill, and wisdom was largely due the unanimity 
that attended the convention movement. The contest throughout the 
State proved an exciting one. It was the absorbing issue in the leg- 
islative canvass each year. A chief cry of the reformers was that the 
new constitution would give the poor man's son equal chance for office 
with the son of his rich neighbor ; that it practically made all men 
equal in fact as well as in theory. The minority stood up manfuliy for 
the constitution of their fathers, but all in vain. The people were ripe 
for organic reform, and all opposition was overwhelmed. The vote 
on the question resulted as follows: In 1847, out of 136,945 votes in 
the State, there were cast for the convention 92,639; in 1848. out of 
139,922, there were cast for the convention 101,838 votes. At that 
time the number of counties in the State was one hundred. Of this 
number, ninety gave a majority for the convention in 1847. The ten 
opposing counties were as follows: Bourbon, Boyle, Casey, Fayette, 
Henderson, Marion, Pendleton, Rockcastle, Scott, and Woodford. In 
1848, there were but three opposing counties — Boyle, Green, and 
Scott. The result altogether was an instance of unanimity on the 
part of the people without a known parallel in the history of the State. 



5.6 



BEN HARDIN. 



CHAPTER XXXI. 

THE CONSTITUTIONAL CONVENTION OF 1 849. 

THE chief events that stirred the Commonwealth of Kentucky in 
1849 maybe thus summarized: First: The call of a consti- 
tutional convention in January by legislative act pursuant to the votes 
of the two preceding years. Second: The animated campaign for 
seats in that body, and the election of delegates in August. Third : 
The meeting of the convention in October, and the work it per- 
formed. 

Undoubtedly, the great preponderance of the talent of the State 
was embraced among those who had favored the convention. Never- 
theless, the minority, though small in numbers, was eminently respect- 
able in character and ability. The struggle for seats in the convention 
was within, rather than without, the ranks of its friends. The latter, 
however, were at issue on a variety of questions. The chief contro- 
versy was, as to the extension of the elective principle. A great 
number, actuated by interest, education, or opinion, opposed entrust- 
ing the people with the unrestricted right to choose their rulers. As 
the event proved, the great majority held an opposite view. Yet many 
of this majority, while in favor of making all ministerial and executive 
offices elective, doubted the wisdom of choosing the judiciary by the 
popular voice. 

The original constitutional reform party, true to its teaching for the 
preceding quarter of a century, was, in the main, in favor of making 
all officers responsible to the people. The difference arose as to the 
means by which to secure responsibility. All agreed that offices 
should be held for limited terms. As to the judges of the courts, 
some favored their appointment by the Legislature ; others, that they 
should be chosen directly by the people. So heated did the contro- 
versy on this question become, that some of the early and able friends 
of constitutional reform were estranged before that work was accom- 
plished. 

A few favored what, in the parlance of the day, was called "the 
open clause." These desired a constitution so framed as to impose as 
little obstruction as might be to the emancipation of slaves whenever 



DELEGATE TO THE CONVENTION. $IJ 

the people should favor such a scheme. Those holding this view were 
denominated "emancipationists." The friends of slavery bitterly 
opposed the "open clause," and, on the contrary, insisted that special 
guarantees should be inserted for the security of slave property. 
These must be taken as illustrative examples of the issues in the cam- 
paign for the election of delegates. 

Nelson county was entitled to two members in the convention. 
For these honors Charles A. Wickliffe, William R. Grigsby, and Mr. 
Hardin were contestants. Wickliffe was a Democrat, while his com- 
petitors were Whigs. Nelson was in sentiment decidedly a Whig 
county, but so disjointed were the times that former party affiliations 
afforded uncertain assurance of results. Although not entertaining, 
or at least not expressing, such sentiments at the outset, yet while a 
candidate for delegate, Mr. Hardin took ultra ground in regard to the 
extension of the elective principle. As had always been his custom 
when seeking popular favor, he made frequent addresses to the peo- 
ple, and engaged in public debate with those differing from himself on 
pending questions. While laboring in surrounding counties, he was 
wise enough not to neglect what was necessary at home to secure suc- 
cess. He was resolved not to miss the opportunity of helping com- 
plete the work his efforts had so largely contributed to inaugurate. 
The Democrats rallied to Wickliffe's support, and were ready to give 
their second vote to Hardin or Grigsby, as might best promote the 
interest of their own candidate. 

Hon. A. H. Garland, at the time a student at St. Joseph's college, 
was an interested observer of the canvass, and thus entertainingly 
alludes to it: 

"In the canvass for the seats in the constitutional convention of 1849. 
Mr. Hardin, Charles A. Wickliffe, and William R. Grigsby were candidates 
in Nelson county. They spoke at some nine or ten places. It being vaca- 
tion, I rode around after them and heard nearly all their speeches. It was 
a most magnificent discussion of all the questions of interest of that day to 
Kentucky. I have often thought it unfortunate that those debates were not 
reported in full. The parties engaged were all giants. 

" Hardin and Wickliffe were elected, but Grigshv came out of the con- 
test with renewed and increased name and honor, losing nothing by 
his struggle with these two Nestors. At the last speaking, 'Old Ben' (as 
everybody called him) closed his remarks by saving : ' And if you don't 
want me to represent you. just remember I will he content to stay at home 
and practice law at the same old stand at the same rates, where I will he 
pleased to see you all at any time.'" 



5 i8 



BEN HARDIN. 



On the day before the election, Mr. Hardin took the precaution to 
visit localities where Democratic voters were numerous and to impress 
on them the idea that his own election was assured, and that the con- 
test was between Grigsby and Wickliffe. The effect of such a sug- 
gestion was obvious. 

In Hardin county it was understood that John L. Helm (Mr. Har- 
din's son-in-law), at that time lieutenant-governor, aspired to a seat 
in the convention. Thomas D. Brown and James W. Stone were 
announced candidates, and favored the most liberal extension of the 
elective franchise. Governor Helm, who had been an early and active 
friend of the convention, was an outspoken opponent of an elective 

judiciary. It was characteristic of Mr. 
Hardin to allow no obstacle to defeat 
a purpose on which he had once re- 
solved. Much as he admired and 
highly as he esteemed his talented 



kinsman, he was unwilling to hazard 
the scheme for a new r constitution or 




!| any material element of reform by ad- 
p mitting so skillful and able an oppo- 
f nent as Helm into the convention. Mr. 
Hardin met Helm in debate at Eliza- 
bethtown, and made a speech of such 
overwhelming effect as to render Gov- 
ernor Helm's election impossible. This 
John l. helm. caused Tom Marshall afterward to de- 

nounce him as the prototype of Saturn, who devoured his own off- 
spring. 

For the third time in the history of the State a constitutional con- 
vention met at Frankfort, October I, 1849. Proceedings began by a 
motion of David Merriwether that George W. Johnston be temporary 
chairman, and Charles C. Kellv, secretarv. After a call of delegates, 
an oath improvised by Mr. Hardin was administered. It was next 
resolved that the permanent officers of convention should consist of a 
president, secretary, assistant secretary, sergeant-at-arms, and door- 
keeper. 

James Guthrie, Democrat, of Louisville, was elected president 
over Archibald Dixon, Whig, of Henderson, the vote standing as 
follows: Guthrie, 50; Dixon, 43 ; Gaither. 1; Davis, 1. The time- 
honored custom of opening deliberative bodies with religious observ- 



ONE HUNDRED MEN OF TALENT. 5 19 

ance was neglected until the fifth day of the session, when the late 
well-known Stuart Robinson offered a morning prayer, and thereafter, 
each morning a similar service was rendered by the pastors of the 
various churches at Frankfort — Protestant and Catholic. 

The business of the convention was, after some debate, divided 
among the following standing committees: 

First : On the Executive for the State at large. 

Second: On the Executive and ministerial offices of counties and 
districts. 

Third : On the Militia. 

Fourth : On the Legislative department. 

Fifth : On the Court of Appeals. 

Sixth : On Circuit Courts. 

Seventh : On County Courts. 

Eighth : On Miscellaneous provisions. 

Ninth : On Revision of the Constitution and slavery. 

Tenth : On Education. 

Mr. Hardin was appointed chairman of the committee on circuit 
courts, one of the most important. 

Preliminary to some further reference to the proceedings of the con- 
vention, it may be interesting to briefly notice the personal aspect of 
that body and indulge some general allusion to its character. Mr. 
Hardin said of it : " When I met this convention, I looked around to 
see what kind of men it was composed of. I have since repeatedly 
remarked that I have been in many deliberative bodies — ten years in 
Congress and ten years in the Legislature of the State — yet I think- 
in the whole course of my public life, I have never been associated 
with a hundred men of more talent, men with whom I am more 
proud to be associated, than the hundred men that compose this con- 
vention/' 

This was no undeserved eulogy. In the list of members were many 
who had already achieved national reputation by their talents, and still 
others who were at the outset of careers that brought them renown. 
There were colleagues and disciples of the eloquent Clay, as well as his 
formidable antagonists who had shown themselves worthy to be his 
foemen on many a well-fought field. It was not merely a body of 
orators, although as such pre-eminent, but embraced in it were men 
of sound practical sense, of profound learning, experienced in affairs, 
and qualified for the philosophic consideration of all the grave details 
of government. 



520 BEN HARDIN. 

No one took a more active part in the proceedings of the conven- 
tion than Mr. Hardin ; no one spoke so frequently as he, and none 
more pertinently, tersely, and effectively. He was the recognized 
Nestor of that body, and his slightest utterances received respectful 
attention. In number of speeches Mr. Wickliffe ranks next. The 
following distinguished names were among the most frequent speak- 
ers : Squire Turner, James Guthrie, Beverly L. Clark, Philip Triplett, 
John W. Stevenson, Richard Apperson, Willis B. Machen, Charles 
Chambers, William Preston, A. K. and M. P. Marshall, James W. 
Irvine, Archibald Dixon, Garrett Davis, David Merriwether, and 
George W. Kavanaugh. 

The following delegates either had been, or afterward became, 
members of Congress: Albert G. Talbott, James S. Chrisman, 
Philip Triplett, Francis M. Bristow, Ben Hardin, John H. McHenry, 
Thomas P. Moore, and William Preston. Guthrie, Dixon, Machen, 
Davis, and Merriwether were subsequently United States senators ; 
Stevenson became both governor and senator ; Silas Woodson became 
governor of Missouri ; Preston and Clark filled missions abroad. 
Others were less distinguished for positions attained, but hardly less 
so for brilliant talents. 

Nothing of any special interest — aside from organization — trans- 
pired in the convention until October 4th, when Garrett Davis, of Bour- 
bon, introduced his proposition as to the elective franchise by for- 
eigners, virtually formulating the ideas of the Native American party. 
When first sprung, the sentiment and probable action of the con- 
vention seemed doubtful, but the proposition was laid over for further 
consideration. This was the first significant event in its proceedings. 
If Mr. Davis' design had prevailed, it would have united (as he hoped 
and expected) the Whig and Native American parties. His proposi- 
tion excluded from the elective franchise all future immigrants, and 
imposed very stringent conditions on those who were already natural- 
ized. 

Upon this important question, the opinions of Democratic mem- 
bers were somewhat unsettled — and these not at all decided against 
Native Americanism — and the Whigs were less so. This debate 
acquires importance from the circumstance that it marked a breach 
in the Whig party between pro-slavery and free-soil Whigs, traces of 
which were discernible in every contest up to the civil war. Of the 
Native Americans, Davis was the acknowledged leader, and at one 
time seemed its probable candidate for the presidency. 



NATIVE AMERICANISM. r, 2 I 

The debate on the question was not concluded until toward the 
close of the session. On that occasion the theory and doctrines of 
Native Americanism were elaborately stated in a historical and anti- 
Catholic speech by Mr. Davis, tracing them from the time of Con- 
stantine to the foundation of our own government. 

There were six Catholic members in the convention, and by agree- 
ment of these and other opponents of Davis' resolution, Mr. Preston, 
of Louisville, was selected to reply. His elaborate, logical, and impas. 
sioned speech completely overwhelmed the movers of the resolution. 
While others participated in the discussion, yet the curious reader will 
find the whole reasoning, pro and con, on this important and still inter- 
esting question in the two speeches of Davis and Preston.* On the 
vote on December 17th, the resolution was rejected, Davis and five 
others only voting for it. Mr. Hardin is recorded against it — and yet 
it has been inferred from some of his arguments on the subject of 
restricting the representation of cities that he was not hostile to that 
feature of Native Americanism leveled solely against foreigners. Cer- 
tain classes of foreigners he regarded unfriendly to slavery, and the 
immigration of these he would have obstructed. Moreover, it seems 
he suspected Native Americanism to be a step toward free-soilism 
and abolitionism, and these he believed the precursors of war, and so 
broke with all Whigs having those tendencies. This question in some 
of its aspects was the most important that arose. 

Mr. Spalding, a Catholic member, had been exceedingly active in 
opposing the Davis resolution, and his gratification at its almost unan- 
imous defeat so overcame him when thanking a fellow-member for his 
services in the matter that he burst into tears. 

Another exciting topic was the subject of domestic slavery. The 
compromises of 1850 were then pending before Congress, and no 
doubt was felt of the settlement of the questions involved, amicably 
and wisely, but sagacious and thoughtful men felt convinced that Mr. 
Clay's beneficent hopes would in another generation amount to noth- 
ing, unless a clear, manful, and honest understanding was had between 
the South and the North as to the true foundation and meaning of 
the organic law, with a renewal of obligation for its faithful mainte- 
nance. Nearly half the property of the Southern States consisted of 
slaves held under the guarantees of the Constitution. It was foreseen 
by able statesmen that such a vast amount of wealth could not be anni- 
hilated without war, and Northern leaders contended boldly that to 
pay for emancipated slaves would be a disgrace to the nation and an 

* Kentucky Constitutional Debates, pages 1002 and 1017. 



522 BEN HARDIN. 

affront to humanity. The wisdom of Clay served to allay, for a time, 
the excitement engendered by these questions. The Whig members 
oi the convention, with few exceptions, placed absolute reliance in the 
providence, virtue, and courage of this great statesman. While those 
compromises were without any prospect of fulfillment, yet there were 
never more manful efforts made by patriots to secure peace. The 
Democrats were united — the Whigs divided. Of Southern Whigs, 
Archibald Dixon was most conspicuous in the convention. He was 
looked to and regarded by the pro-slavery element as their leader on 
that issue. But he, perhaps, became too zealous an advocate of 
Southern rights considering the geographical situation of Kentucky, 
and the breach within her borders, then opening in the Whig party, 
which, under Clay's leadership, had so long held irresistible power. 

Mr. Hardin, while not the least disaffected on the slavery question 
and quite as intolerant as any, of the political incendiarism and fanati- 
cism that menaced that institution, was yet temperate and conserva- 
tive in his expressions on the subject. He foresaw the trouble and 
disaster that then threatened the country, and that within a decade of 
his own death did ensue, and sincerely, both in speech and action, 
did what he might to postpone the evil day. 

In the course of its deliberations, the convention considered and 
debated nearly every important principle of government. A full list 
of the questions discussed, much less the briefest review, would be 
beyond the limits assigned the subject in this work. These debates 
were not only marked by a patriotic zeal, but also by a temper 
exceedingly favorable to the just solution of constitutional problems. 
As a rule, they were masterly, exhaustive, and eloquent. The criti- 
cism of Mr. Bristow, that "every question ran into slavery or 
cities," was not unfounded, but a mitigation of the criticism is found 
in contemporary circumstances. At that day, great excitement had 
been engendered throughout the South, and in Kentucky as well, by 
the agitation of the slavery question. Cities were regarded as hot 
beds of emancipation. Hence, their frequent association. Slavery, 
the judiciary, and the extension of the elective franchise were leading 
topics. The powers of the executive and legislative departments, the 
appointment and basis of representation, and the mode of taxation 
were subjects that received a large share of attention. 

Mr. Hardin neither sought nor expected any other importance in 
the convention than such as his talents necessarily gave him. While 
he was a natural leader, and on many questions actually so in the con- 






THE GREAT PURPOSES OF THE CONVENTION. 523 



vention, yet he paid no attention to, and had no regard for, the minor 
details of leadership. As strongly pro-slavery in his sentiments as 
many members of that body, yet he took delight in ridiculing some 
of the positions and arguments of its friends. Asserting the right of 
the slaveholder to his slave under the law, yet he denied that there 
was, as some argued, anything divine in its origin. He said the Bible 
recognized its existence, but did not authorize it. While denying the 
expediency or justice of interfering with it, yet he disputed with 
those who said the convention could not interfere. When he had, 
what he deemed, a sound argument for his position on any subject, 
he scorned the aid of all sophistry. Herein he differed from the 
thorough-paced leader — ever ready to permit his followers to choose 
their own reasons for their action, content if they are faithful to the 
common end, however illogically attained. 

Said Mr. Hardin : "I have been about half my life in parliamentary 
bodies, but have never expected elevation to the chair of speaker, 
or even that of chairman of committee of the whole. I know as little 
about parliamentary rules as almost any other man." He valued the 
privileges of a free lance above all the official honors of a deliberative 
body. Notwithstanding he thus depreciated his parliamentary knowl- 
edge, yet he was successful in catching the speaker's eye whenever he 
desired. 

He entered the convention thoroughly imbued with the popular 
ideas in which it had its origin. He manifested at all times a zeal for 
the success of its labors. Not unfrequently he reminded it of the pur- 
pose for which it had assembled. In its early days he observed : 

' ; We came here with a view of making three or four essential changes in 
our organic law. One is to take the appointing power from the executive 
and give it to the people ; and another is to destroy the life tenure of office, 
because the holders of offices for life, or during good behavior, are virtually 
under no responsibility whatever — the tenure of office being in the nature of 
a life estate. As Jefferson well said, ' they never resign and scarcely ever 
die.' Another object is to make the holders of office more immediately 
responsible to the people ; and another object — one which I had particularly 
in view, although I do not know how it is with other gentlemen — was to pre- 
vent the State from contracting any more of those enormous debts, which we 
have been in the habit of doing. When we have done these things we have 
attained the great purposes for which we assembled." 

Mr. Hardin has been pronounced a radical on the extension of the 
elective franchise. He had studied the proceedings of the New 



524 BEN HARDIN. 

York convention, of a few years before, and had become thor- 
oughly imbued with the principles that prevailed in that body on the 
subject. Favoring the application of the elective principle to all 
offices, yet he insisted on tests of qualification as to those requiring 
skill and learning. Clerks, he urged, should have certificates, and 
judges should be lawyers of experience. 

"I think it a very valuable requisition," said he, "to say to a man 
who conies forward as a candidate : You shall have a testimonial of your 
qualification, and you shall not be elected because you are a successful dem- 
agogue on the stump. I am greatly in favor of throwing back all power to 
where it originally belonged, but let us not run the thing too far." 

Another restriction of the elective principle was the doctrine of 
ineligibility to a second term, which he insisted should apply to many 
offices, especially to those where official position might be used to 
secure re-election : 

" Nothing in the world so purifies the political atmosphere as rotation in 
office. What was the principle that fostered the growth of the Roman 
republic, until from a single small city, it grew to a power that overran the 
world? It was rotation in office — that any man who filled an office one year 
should be ineligible the next. That principle was first broken in upon by 
Caius Marius, and from that day may be dated the beginning of the down- 
fall of the Roman republic. You purge your political atmosphere by rota- 
tion in office." 

He was persistent and constant in advocating that the majority 
should rule. He earnestly argued that it was the very essence of 
republicanism. As the business of the convention progressed, he 
recurred to it again and again. 

"There are," said he, " but two kinds of government — but two. Some 
are called the government of the Grand Turk, some the great emperor of 
all the Russias, or the emperor of Austria, or King of Prussia, the misera- 
ble little Bonaparte, now in Paris, the queen of England, with her royal 
spouse, or we may go back to the aristocracies that existed in Venice — and 
in all there are but two kinds. One is that of the minority controlling the 
majority, and the other is that of the majority controlling its own action. 
Call it imperial, monarchical, or what you will, there are but two kinds." 

He was in advance of his party (the Whigs) on this subject, and 
was charged with over-zeal and rashness in its advocacy. But this 
over-zeal, as the sequel proved, had not been without method, and 



THE "LEGION." 525 

bore abundant fruit. Says one who witnessed the progress of the 
convention, day by day: "The Whig party was conservative on the 
subject of the elective franchise in the outset, but about the middle of 
the session, there was a general 'break-up,' and the measure for 
extending the franchise carried overwhelmingly." 

Notwithstanding the substantial coalition of all parties on this ques- 
tion, yet the intelligent and free action of the convention was fre- 
quently and greatly obstructed because various propositions of reform 
were classified as Whig or Democratic measures, and thus party lines 
were continually embarrassing the just consideration of the great prin- 
ciples of government. 

Representation and cognate questions produced extended debate, 
which was not at all times free from acrimony. Especially was the 
last result true in the debate as to the representation of towns and 
cities. The proposition to fix a standard beyond which the represen- 
tation of towns and cities should not be increased, was a discrimination 
resented with spirit by their delegates. It was argued that to allow 
them to be represented according to population equally with county 
districts would give them undue advantage. The under-lying idea in 
this argument was that towns and cities were not to be trusted on the 
slavery question. In combating this doctrine, Mr. Preston had 
referred in eloquent terms to the patriotic conduct of the city of 
Louisville with reference to the Mexican war, then but recently ended 
— that city having furnished a body of troops designated as the 
"Louisville Legion." Replying, Mr. Hardin spoke of the anxiety of 
Kentuckians to enlist in the army, which was denied to many, because 
the State's quota was full. 

"They had to be drafted out instead of drafted in, said he. I con- 
sidered it a favor to Louisville, and in that regard she stood forth in place of 
the balance of the young men of Kentucky. She behaved very handsomely. 
She had one-fourth of the officers that went from Kentucky, when the balance 
of the State was in no wise behind. But, sir, when you came to the actual 
fighting, part of the Louisville regiment was not brought into battle. Three 
days Monterey was besieged, and there were three days of fighting from day- 
break to dark, and yet they did not get into the battle. I have no doubt 
they were as ready as any men in Kentucky, but why General Taylor did 
not bring them into action. I do not know, nor will I attempt to guess, for I 
might guess improperly. One thing I do know, that at the battle of Buena 
Vista the second regiment of Kentucky was there, and how prettilv they 
came in ! Yes, sir, and they bled, too, and caused blood to flow from the 



526 



BEN HARDIN. 



enemy. They were called and will be called for a hundred years to come, 
'The blood regiment of Kentucky.' If you go on to the hill here, to the 
burial place of Kentucky soldiers in the cemetery, you will see some indica- 
tions of it. I have examined that place, and I did not see the grave of a 
single soldier from the Louisville Legion. Do not understand me to say 
that they would not have been as ready as any men in Kentucky, but, I pro- 
test against Louisville being put up here between Kentucky and danger, as 
if she stood for the balance of the State. " 

This seemingly artless statement of a historical fact drew down on 
Mr. Hardin the wrath of the Louisville delegation, especially that of 
the president of the convention. The latter began a long and impas- 
sioned speech with the remark that ' ' the elder gentleman from Nel- 
son had seen fit to cast a base and infamous stigma upon the gallantry 
of the soldiers of Louisville." What followed was in harmony with 
this initial observation. Mr. Hardin explained : 

" Now all I intended to say was — for I said it over and over again — that 
the Louisville Legion was as brave as any other, but at all events, they had 
done no fighting. I did not attempt to say, nor do I intend to say, that 
Taylor distrusted the bravery of the officers or of the men of the Louisville 
Legion. On the contrary, I said the men were as gallant as any in the ser- 
vice, and at the same time, I said that the second regiment — a regiment that 
was raised from the body of the State — had covered itself with glory. And 
it did, sir. I was perfectly astonished when the gentleman broke out into a 
thundering tone of voice against me on account of what I had said. I 
recollect thirty years ago there was one Phil Thompson, who was practicing 
law in the courts of Breckinridge county, and on one occasion, when he 
commenced a speech in the court-house, the first word he uttered was in a 
scream like the gentleman from Louisville. ■ The crowd about the street had 
been accustomed to witness fights, and they all rushed to the spot, thinking 
a fight was going on. When they found out it was Phil Thompson speaking, 
' well, I declare,' said one, ' I did not expect to see him get crabbed so 
quick. He got mad too soon.' So it was with the gentleman — he got mad 
too soon. 

" I have read somewhere in Josephus, I believe — or if it is not there, it 
ought to be — that Goliah was born in Askalon, and not in Gath, but he 
went to Gath, and gave out in speeches that he belonged to the race of 
Anak. The gentleman was born in the county of Nelson ; he was educated 
at Bardstown — and a good education it was — and he practiced law there, and 
got a good practice, and finally ran for the Legislature. But we all know, 
and we have the testimony of Holy Writ to the same effect, that ' a prophet 
is not without honor save in his own country.' He removed to Louisville, 
and is now the ' Goliah of Gath.' 



HARDIN AND " GOLIAH. 527 

" ' Why man he doth bestride the narrow world, 
Like a Colossus ; and we petty men 
Walk under his huge legs and peep about, 
To find ourselves dishonorable graves.' " 

After saying many other things as little adapted to appease the 
wrath and solace the feelings of the irate president, Mr. Hardin 
closed with the rather illogical statement that ' ' if he had uttered a 
word that was disrespectful to the gentleman, from the time he first 
saw him, when he was a boy, he hoped he might die the death of a 
sinner." 

Perhaps it was not expected that these explanations would be 
accepted as satisfactory. Certainly they were not. Mr. Guthrie, 
rejoining, said : 

" I have some knowledge of a sneer, and what a sneer is intended for. 
The gentleman says he did not intend to impugn the valor of the soldiers of 
Louisville. Yet he said, with a sneer, that no citizen of Louisville was in 
that battle. I yield to him the palm in sneering. He is in that the peer of 
all the peers in this land." 

Said a gentleman who happened in Frankfort during this tilt 
between Guthrie and Hardin : "One night my father and I called at 
Mr. Hardin's room, and the debate was talked about. 'Mac.,' said 
Hardin to my father, 'did you hear me say anything that could offend 
Guthrie, or have you any idea what he is mad about? ' It was this 
pretense of ignorance — a pretense that Hardin enjoyed hugely — that 
so provoked Mr. Guthrie. 

Notwithstanding Mr. Hardin and Mr. Guthrie concurred in favor- 
ing a new constitution, otherwise many points of antagonism existed. 
Politically, they had always been divided. Mr. Hardin's temporary 
amnesty to democracy did not extend to its leaders, or not fully so. 
Mr. Guthrie had entered the convention as a leader, and a democratic 
leader. It was not in Mr. Hardin's nature to share leadership at any 
time with any one. He had voted for Mr. Dixon for president of the 
convention against Mr. Guthrie. He questioned Mr. Guthrie's right 
to first rank among constitutional lawyers. These circumstances con- 
curring with a possible old grudge against Louisville, nerved his arm 
and furnished motive in this contest with the president of the conven- 
tion. 

On the subject of common schools Mr. Hardin, with his immediate 
constituency, was in the minority. He opposed constitutional provi- 



528 HEN HARDIN. 

sion requiring the establishment of such a system. He opposed 
schools established and maintained by law. One reason for this oppo- 
sition was, that if incorporated in the new constitution, it would 
imperil its success. He also thought such a system of education 
unjust to certain religionists who would patronize no school not con- 
ducted by teachers of their own faith. He condemned it as inade- 
quate for purposes of education. Good teachers, he contended, could 
not be obtained. He admitted it might possibly benefit the towns, 
but thought it impracticable for rural districts. 

•' I am confident," he said, " that the country will not approve the sys- 
tem. It may be an advantage to the towns, but it will be a burden to the 
country, to which they should not, in justice, be asked to yield. The towns 
should remember the old saying : ' If, when you go to market, you expect to 
get meat, you must expect to get bones also.' They must expect their share 
of the inconveniences as well as advantages by living in towns." 

Different views prevailed, and educational systems, established by 
law and maintained at the public cost, have long since met popular 
approval in town and country. 

He urged with great earnestness a restriction on the power of the 
Legislature to create State debts. In this he was wiser and more suc- 
cessful, and the State has escaped many burdens that otherwise would 
have oppressed it. 

Before 1849, there had been no appeal allowed to the Court of 
Appeals in felony cases. Mr. Hardin unsuccessfully opposed the pro- 
posed provision allowing such appeals. He professed to believe, and, 
no doubt, sincerely, that innocent men were in no danger of punishment 
in the inferior courts, and that allowing appeals only increased the 
chances for the guilty to escape. Indeed, he thought the State at dis- 
advantage in prosecutions in the trial courts. It was through his 
efforts that the prosecution (formerly entitled to none) was allowed in 
felony cases, one-fourth as many peremptory challenges to jurors as 
the prisoner enjoyed. 

While some of his views on constitutional questions were over- 
ruled by the convention, yet, as its labors drew to a close, none man- 
ifested more desire than he, that the new constitution should be adopted 
by the people. Differences arose as to whether the convention should 
adopt the new constitution without further action by the people, or 
should submit it to a vote for ratification or rejection. Mr. Hardin 
insisted on submitting the question to a vote, and also that the con- 



THE SUN OF AUSTERLITZ. j2(j 

vention should not dissolve until after the result was known. Lengthy 
debate occurred on these points — and his views were sanctioned by a 
vote of 56 to 41. 

The day following this vote, he said : 

" I was unhappy from the day this convention was called until Inst night. 
I was afraid all the discordant interests, the emancipationists, the old hunk- 
ers, and the old constitution men would combine and raise money, which is 
the sinews of war, political as well as civil — and that no man would 
subscribe one dollar for the constitution, and that they would mash it up. A 
dark cloud hung over our prospects until last night. The lightning seemed 
to flash, and the thunder to roll; but thank God! it is past and I seethe 
bright sun of Austerlitz now bursting on the people. Yes, sir, the bright 
sun is shining on us, and as sure as the Lord liveth, we will have a constitu- 
tion and the people will take it. Where will be the emancipationists? Will 
they undertake to kill you, friend Merriwether ?* Never ! They will not be a 
thorn in your side. Where will be the old hunkers ? They will swear they 
were with us from the first. Where will be the old constitution men ? Like 
the rest of the horses when they ran against ' Flying Childers,' they will be 
nowhere in the race. We will have an easy time, if we determine to come 
back here. Did not the world say Sampson was a fool for permitting his 
hair to be cut off? For what power have we then — not even to kick a dog 
from our feet — and like a dog, go sneaking home." 

The following estimates and comments on some of the leaders of 
the convention, gathered from various sources, may not be without 
interest: 

Richard Apperson was an excellent and long a successful lawyer of 

Mt. Sterling. 

Alfred Boyd, of Trigg, proved himself an active and useful member. 

Francis M. Bristow, of Todd, chairman of the committee on county 
courts, was a sound and able lawyer, and an important factor in the 
convention. He was not a brilliant orator, but earnest and forcible, 
and by reason of integrity and high character, his influence was very 

great. 

In addition to excellent professional attainments, Charles Cham- 
bers, of Boone, was pronounced a very sensible man. 

Beverly L. Clark, of Simpson (says one biographer), " was learned 
in the law — and an able and eloquent orator — one of the best in the 
State." His oratory possessed a magnetic and impassioned quality 
that caught the popular ear. Of him it was said that in the conven- 

*This allusion is to a supposed attempt on the life of Hon. David Merriwether by in "open 
clause " partisan. 

34 



530 



BEN HARDIN. 



tion he was better at elaborating than breaking the route on any 
question. He was a leading Democrat, but it has been intimated that 
he had a quick ear for the suggestions of the younger and Whig del- 
egate from Louisville. 

Garrett Davis, of Bourbon, sacrificed his usefulness by becoming 
the leader of the Native American element, and he did not retrieve 
himself by taking ground that the right of the master to his slave was 
above constitutional sanction. He was impetuous and impractical. 

Lucius Desha, also of Bourbon, was of limited vocabulary and a 
prosy speaker, but a good parliamentarian, and had the faculty of 
drawing, with (exv words but wonderful vividness, lines of character 
that he seemed to apprehend with remarkable insight. 

Archibald Dixon, of Henderson, was, par excellence, the leader of 
the Whig party in the convention. He was a man of fine and impres- 
sive presence. His knightly bearing and air of high breeding indi- 
cated one of nature's nobility. He was a fiery, fluent, and persuasive 
speaker. 

Seleucius Garfield, of Fleming, a Vermonter by birth, was a man 
of decided talent. In the canvass for delegate, his colleague, Martin 
P. Marshall, had referred to him on one occasion as the Yankee ped- 
agogue, whereat Garfield retorted with such vigor that Marshall 
was afterward content to let him alone, and it was even suspected a 
treaty was entered into to secure their joint election, which, indeed, 
occurred. 

Richard D. Gholson, of Ballard, to Whig perception was a dema- 
gogue. One says, " he was potential in the ' Purchase' and faithfully 
followed Hardin." Another: "He was a man of hard, common 
sense, a good member, though radical on the subject of extending the 
elective franchise." 

James Guthrie, of Louisville, possessed sterling sense, and was 
more conservative than his party, to which, however, as one of its 
leaders he was subservient. He was not an orator, but a forcible 
speaker. He was full of ideas and an earnest thinker. Aside from 
his official position, his influence in the convention was very consid- 
erable. 

Mark E. Huston, of Spencer, stood high in the legal profession. 

Thomas James, a farmer of Hickman, did credit to himself and the 
then new "west end," he represented. 

George W. Kavanaugh, of Anderson, a good lawyer, was exceed- 
ingly clear in his perceptions as to the true principles of government. 



BRIEF ESTIMATES. 



DJ> 



Thomas N. Lindsay, of Franklin, fell below the expectation which 
his known talents had justified. 

Dr. Alexander K. Marshall, of Jessamine, was of that talented fam- 
ily of which Thomas F. Marshall is best known. Dr. Marshall was 
a radical Democrat, and though not equal to his brother in culture and 
genius, possessed strong intelligence. 

Martin P. Marshall, of Fleming, was a man of integrity and polit- 
ical sagacity, proved an excellent member, and has been pronounced 
one of the brainiest in the convention. 

Richard L. Mayes, of Graves, was a 
very strong man intellectually. 

John H. McHenry, of Ohio, a kins- 
man of Mr. Hardin, was of ripe judg- 
ment, well-balanced faculties, a clear 
and vigorous thinker. 

Thomas P. Moore, of Mercer, nick- 
named "Free Tom," had had consid- 
erable legislative and congressional ex- 
perience, was influential with the Dem- 
ocracy, to which he belonged, but for 
reasons somewhat conjectural eschewed 

debate. John W. Stevenson 

Elijah F. Nuttall, of Henry, was a singular genius, a warm Demo- 
crat, and very whimsical in his opinions. He was ardent in debate, 
had decided views on all questions, but influenced no one on any- 
thing. 

Ignatius A. Spalding, of Union (kinsman of the distinguished 
lawyer and politician of Morganfield, who bears his name), was a 
typical Kentucky farmer — vigorous, hearty, frank, intelligent, and 
honest. When Garrett Davis precipitated the Native American issue 
upon the convention, Mr. Spalding led the opposition. 

John W. Stevenson, of Kenton, had not at that time attained his 
full intellectual maturity, but proved a useful, hard-working member. 
He was conceded a leading place in the convention, not only for his 
legal acquirements, but for his well-poised temper and sound and 
intelligent statesmanship. As a Democrat, he had some difficulty in 
restraining the impetuosity of his co-partisans within his own con- 
servative views of propriety. When the Green river Democracy, 
and that of the "Purchase," were inclined to stampede under the 
incitation of Hardin or Gholson, Stevenson would encounter them 




532 



BEN HARDIN. 



with some scrap of a letter from Washington, Jefferson, Madison, or 
Monroe with such urbanity that if he did not control them, he gave 
no offense. It was charged that he could aptly quote from the writ- 
ings of Mr. Madison, no matter what the question — whether the com- 
position of a custard or the construction of a constitution. 

Philip Triplett, of Daviess, was a useful member of the conven- 
tion, and in harmony with its more conservative aims. 

Squire Turner, from Madison — on the line between the bluegrass 
and the mountains — was very potential, on account of locality, as 
well as of his marked talents and consummate lawyership. 

Silas Woodson, of Knox, was a bright man, and has since abund- 
antly redeemed, by a brilliant career in a sister State, the promise of 
his early manhood. 

Twenty-four members (so far as the report shows) took no part 
whatever in the debates, and possibly in so doing, acted more wisely 
than some who were heard "for their much speaking." 

"The debates of the convention were taken verbatim," says Col- 
onel John W. Finnell (who had charge of reporting), "but they were 
very much cut down in the published debates. A full report would 
have made them intolerably voluminous." 

On December 21st, the constitution was completed and the conven- 
tion adjourned until the first Monday in June, following. Mean- 
time, the product of its labor was assailed with vigor, and as vigor- 
ously defended. The most notable debate of that period occurred 
in the hall of the House of Representatives in January, 1850, between 
Mr. Hardin and the famous Thomas F. Marshall. They not only 
dwelt on the merits of the questions involved, but enforced their 
respective views with a degree of sarcasm, wit invective, and ridicule 
never before witnessed in the State. This tournament lasted several 
days. Marshall established a campaign paper at Frankfort, styled the 
Old Guard. The Old Guard fiercely attacked the new constitution, 
of which The Champion of Reform was the advocate. Throughout 
the State, speakers were on the stump, exerting their logic and elo- 
quence for and against the new form of government. No one was 
more untiring and enthusiastic than Mr. Hardin, and an Ajax he 
proved himself. As he had predicted, the new constitution was 
approved by the vote of the people in May, by a decisive majority. 
To him the result was doubly gratifying. Not only were the prin- 
ciples triumphant, which he had long cherished, but at the close of 
his career he had crowned the labors of his life with a master-piece. 



ORIGIN OF CLERICAL DISABILITY. 533 






CHAPTER XXXII. 

A PLEA FOR THE CLERGY. 

WHEN Virginia formed its first constitution, that instrument con- 
tained a provision prohibiting clergymen from seats in its legis- 
lative body. The cause of this discrimination may be readily traced to 
jealousy of the church establishment of colonial times. The Estab- 
lished or Episcopal church had been supported by an annual stipend, 
levied by authority of the colonial government. Naturally, this levy 
generated discontent and bad feeling on the part of other religious 
sects. This burden, and the infliction of legal penalties against dis- 
senters, had produced and intensified the opposition to the union 
of church and State. The first fruit of these, under Republican rule, 
was the constitutional inhibition in question. Rev. John L. Waller, 
in the constitutional convention of 1849, g ave the following account 
of its origin : 

" There was some show of an excuse for it, but not the shadow of reason 
in its justification, when it was first introduced into an American constitu- 
tion, in that of Virginia, adopted in 1776. That State was then influenced 
by peculiar circumstances. Previous to that time, under colonial regula- 
tions, the Episcopal church was established there by law. To support the 
clergy of that church, certain lands, called glebe lands, were appropriated ; 
besides a large stipend in tobacco was annually paid them. This became 
oppressive. Other denominations of religionists sprang up, who felt unwill- 
ing to support a church to which they did not belong, and to whose 
doctrines they did not subscribe. The law was appealed to by the friends 
of the establishment. Persecution ensued. My own ancestors suffered 
severely — were whipped and cast into prison. This odious and persecuting 
establishment was put down the year that the first Virginia constitution was 
ordained. The ministers of all other denominations submitted to it quietly, 
because it debarred their persecutors from office. 

" But there was another and more controlling reason for this restriction. 
The great statesman who drafted that constitution was no friend to religion.* 
He had tasted and felt the influence of the French philosophy, which just 
then began to lower upon the brow of the moral firmament, and soon after 
shrouded in darkest gloom the moral heavens of the civilized world. The 
great men of the earth, and many of our own statesmen, were enveloped in its 

'•' Thomas Jefferson. 



534 BEN HAKUIN. 

darkness. This philosophy subsequently led its disciples to declare that 
there was no God, and that death was an eternal sleep. It was, I say, the 
promptings in part of this philosophy, which first gave birth to this proscrip- 
tion of gospel ministers, "f 

When in 1 792, Kentucky — Virginia's eldest daughter — started on 
her own account, the disabling clause referred to was dutifully, though 
without any special rhyme or reason, incorporated into her funda- 
mental law. "No minister of a religious society * * * shall be 
a member of either house (of the General Assembly) during his con- 
tinuance to act as a minister." So the provision ran. Again in 1799, 
when a second constitution was constructed, still more emphatic lan- 
guage was adopted : " No person while he continues to exercise the 
functions of a clergyman, priest, or teacher of any religious society or 
sect" * * * shall be eligible as a member of the Legislature. 
It is not known what discussion, if any, occurred at the adoption of 
either of these provisions. If any, doubtless the calamity of uniting 
church and State was a controlling consideration. 

When the constitutional convention of 1849 assembled, it was the 
preponderating sentiment of that body, as well as of the constituency 
it represented, that Church and State should still be kept separate, and, 
as an indispensable precaution to effect this vital object, that clergymen 
should be debarred from taking active part in the conduct of political 
affairs. The reasons for this sentiment at that day were certainly more 
imaginary than real. The political sagacity of the priestly Ximenes, 
Richelieu, and Mazarin has possibly received some adornment from 
partial historians, and undoubted exaggeration from the facile roman- 
cist. Anyway, the clerical profession of modern times is exceedingly 
barren of types resembling those famous cardinals. A political preacher 
— with due reverence be it said — is most usually a political maladroit. 



fThe provision in question was perpetuated by the Virginia convention of 1829 — in some respects 
the most notable body of this century. It received brief consideration, as appears from the report : 

"The question being then put on the second paragraph, Mr. Henderson moved to strike out the 
provisor (which inhibits the election of priests and ministers of the Gospel to the Legislature^. Mr. 
Henderson put his motion on the ground of principle. It was a conviction of his mind which he could 
not yield even to the views of his constituents. He considered such exclusion directly at war with the 
principles laid down in the previous part of the resolution. 

" Mr. Clopton demanded the ayes and nays, which were ordered. 

" Mr. Giles, in a short speech, pressed these two points — that ministers were taken from among the 
people by two important privileges. First, the license to preach, and second, the exemption from mili- 
tary duty. This made them a peculiar and privileged order. If those privileges were taken away, it 
might be more fair to admit them to political privileges, though on that point, he gave no opinion. 

" Mr. Campbell, of Brooke, suggested that these objections applied with equal force to justices of 
the peace, and nobody contended for excluding them." 

The vote being taken, ex-President Madison was of the fourteen who voted to strike out, while 
Philip P. Barbour, Chief-Justice Marshall, ex-President Tyler, and John Randolph were of the eighty- 
One who voted against the motion. — Debates 0/ Virginia Convention of 1829-30, page 707. 



JOHN L. WALLER. 535 

If the clergy exhibit but little genius for politics, still less is anything 
discoverable in American tendencies that points churchward, or threat- 
ens alliance with any religion. 

But in 1849, it was urged that ambitious religionists would corrupt 
the church for political ends. The argument for perpetuating the 
political disability of the clergy also found fresh force from a prevailing 
idea of that particular period. The agitation of the slavery question 
had produced great feverishness in the public mind. Popular senti- 
ment was overwhelmingly in favor of that peculiar institution. Not 
only those who were openly unfriendly to it, but those even suspected 
of being so, were under popular ban. The opponents of slavery were 
classed as emancipationists. To be an emancipationist was the unpar- 
donable political sin, and worked for the culprit political damnation. 
It so happened that in the mere handful constituting this party in 
Kentucky, were ranged certain distinguished clergymen, who, in talent 
and attainments, were the peers of the brightest intellects of the coun- 
try. They assumed to speak for their estate, and did so with such 
boldness and force that the undiscriminating public suspected all cler- 
gymen of emancipation tendencies. Unreasonable and unjust as was 
the suspicion so originating, yet it was none the less potential. 

John L. Waller, member of the convention from Woodford 
county, led what opposition there was in the constitutional convention 
to the further continuance of clerical disability. He was a minister of 
the Baptist church, and had received the degree of doctor of divinity. 
He had long been editor of the Banner newspaper, of Louisville, the 
organ of his denomination in the West. He was justly distinguished, 
in and out of the State, for great learning, and as a graceful writer and 
a forcible and eloquent speaker — ripe both in years and fame. He 
had become a candidate for delegate to the convention under some- 
what remarkable circumstances. The celebrated orator and politician, 
Thomas F. Marshall, had for some time been a candidate for delegate 
from Woodford county, and was making public addresses to forward 
his election. Dr. Waller happened to be present on one occasion 
when Marshall delivered a public speech, and dissenting from certain 
views relating to Bible teaching on the subject of slavery, asked per- 
mission to reply. This was denied by that haughty child of genius 
unless Waller would become a competing candidate. This condition 
Mirshall supposed would silence his dissatisfied auditor. Somewhat 
to his surprise, the latter arose, announced himself a candidate for 
delegate, and delivered a vigorous response. The debate thus begun 



536 BEN HARDIN. 

continued from day to day, and soon became the most exciting the 
State had ever witnessed. As a political speaker Mr. Marshall had 
no equal in Kentucky, save Henry Clay, while his opponent was 
equally unrivaled in the pulpit. Dr. Waller, having become a candi- 
date merely to obtain the privilege of answering some of the points 
urged by Marshall, intended to have withdrawn before the election. 
This, however, his friends would not allow. He was, consequently, 
voted for, and defeated his opponent by a majority of two hundred 
and nineteen votes. 

His speech in the convention on the subject was a consummate refu- 
tation of all the reasons urged in support of the political disability of 
the clergy. He argued that the creation of this constitutional disabil- 
ity was nothing less than proscription ; that it violated the great repub- 
lican adage of " equal rights to all and exclusive privileges to none." 
He argued, that if seeking political office was a breach of the minis- 
ter's duty to the church, the State could not punish it without usurping 
the functions of the church. Said he : 

"The exclusion applies, you perceive, to any preacher, teacher, or priest 
of religion. A man may preach anything else — deism or atheism — and the 
restriction does not apply. He may teach the grossest immorality — he may 
inculcate robbery under the specious name of gambling — or murder, bap- 
tized as dueling, * * * he may teach the doctrines of devils, and still 
be eminently qualified for office. It is only the man that teaches that life 
and immortality are brought to light by the Gospel — who seeks to diffuse the 
divine influences of Christianity, that is to be proscribed from all direct par- 
ticipation in the affairs of legislation." 

Garrett Davis, member from Bourbon county, presented to the con- 
vention a written memorial signed by two clergymen whose names 
have long been familiar in Kentucky — Stuart Robinson and George 
W. Brush — the first of the Presbyterian, the latter of the Methodist 
church. In this memorial, the arguments against the disabling provis- 
ion were succinctly and forcibly set forth. Assuming that one of the 
reasons for disability was the real or supposed spiritual power and con- 
trol exercised by the clergy over the laity, it was urged that this objec- 
tion did not apply to Protestant ministers, who disavowed any such 
power or control — and it was insisted that the Protestant preacher 
should not suffer for the alleged objectionable principles and practices 
of the Roman Catholic priest. 

Several delegates spoke in favor of continuing the disabilities of the 
clergy, but they signally failed to refute the trenchant arguments of 



REMARKS ON CLERICAL DISABILITY. 537 

Waller. The efforts of the latter were seconded only by the speeches 
of Seleucius Garfield and Mr. Hardin. 
The latter spoke as follows : 

" I expect I will have to give a vote against a majority of the conven 
tion, and I shall make only a few remarks before doing so. I have, for the 
last forty years, from time to time, noted the exclusion from the legislative 
halls of Kentucky, of the ministers of the Gospel, and 1 could never see any 
good reason for it. I recollect when there were efforts made to force the 
president of the United States into a recognition of the independence of 
Spanish America. In some remarks I made in Congress on that subject, I 
said I did not believe they could establish a republic there. They were all 
of one religious denomination. And it turned out to be true. Our gov- 
ernment is very happily balanced. All our foreign relations, all our matters 
and things belonging to the nation, and the army and navy, are managed by 
the government of the United States; and that government is divided into 
three departments — the legislative, executive, and judicial. They check and 
balance each other. But it would soon become a consolidated government 
and a despotism, were it not that the municipal regulations of the country 
belong to the State government, and they are divided into three departments 
— the legislative, executive, and judicial. They check and balance each 
other. The State governments balance the general government, and the 
general government balances the State governments. And the State gov- 
ernments check and balance each other. But the great check is this : We 
have in the United States, and in all the States and Territories, no established 
religion, and so a great many religious denominations have sprung up. They 
are all worshiping God and their Saviour in the manner their conscience 
points out to them. And it is fortunate for the United States that no one 
sect has, perhaps, one-twentieth part of the people. 

"I have some statistics of the different religious denominations in Ken- 
tuckv, which I think correct, which were taken about three years ago. Of 
Methodists, there are about one hundred and fifty ministers, thirty thousand 
white members; United Baptists, about fifty thousand; Reformers, from 
forty to fifty thousand, white and black; Old-School Presbyterians, ninety 
ministers, and ten thousand members; New-School Presbyterians, twenty- 
one ministers and twelve hundred members ; Episcopals, twenty-seven min- 
isters and about twelve hundred members ; and of Roman Catholics, fifty to 
sixtv ministers and a white membership of forty thousand. The whole 
together of the religious denominations will not amount to more than thirty 
thousand voters. We have now about one hundred and fiftv thousand vot- 
ers in the State. What danger then is there of a unity of church and State. 
There is a gentleman over the way. I do not know whether he is a minis- 
ter of the Gospel or not. Well, if he says he belongs to the (lunch, and he 



538 BEN HARDIN. 

has two hundred and fifty voters ; here is my worthy friend before us (Mr. 
Waller) who has eight thousand two hundred and fifty voters. Will 
there be any combination of the Methodists and Baptists ? No ; you might 
as well expect oil and water to mix. There can be no collusion, and will be no 
conspiracy, especially when out of one hundred and fifty-two thousand there 
are only thirty thousand members of the church. I do not vouch for my infor- 
mation being correct, but a gentleman connected with the church has fur- 
nished me with the statistics I have read. What class of men are the clergy ? 
They are moral, virtuous, and intelligent men, and, as a body, are the most 
learned men in Kentucky, and I say this without fear of contradiction. 
Some, to be sure, start out on the ground that they have a calling that way. 
They say Christ made preachers out of fishermen, and that learning is cal- 
culated to spoil the preachers. The Catholic clergy are learned men. we 
know. The father of the gentleman who prayed this morning, sent him 
four years to Rome that he might be educated. All denominations are try- 
ing to give their clergy an education. 

"We know that the Presbyterians are doing everything to instruct their 
clergy. So are the Methodists, so are the Baptists, and so is every religious 
denomination. And it must be confessed that they are a learned body of 
men — much more learned and intelligent, generally, than the doctors and 
lawyers. I will not say that there is more virtue, but I say there is as much. 
I will not say they possess more natural gifts. Well, what harm have they 
done ? Here is my friend near me (Mr. Waller), one of the best informed 
men in the house ; he has been here nine weeks, and he has troubled the 
house but once, and that was to-day. There is the gentleman from Mason. 
who has not spoken much, but when he does speak, speaks well. We all 
expect to die in a few days, he goes off so much like — 

"Hark ! from the tombs, a doleful sound, 
Mine ears attend the cry : 
Ye living men come view the ground, 
Where you must shortly lie." 

" I am in favor of the admission of the clergy. There is no exclusion in 
Congress. I have never seen less than from ten to twenty there, and they 
are as praiseworthy a body of men, and as good members as you can find 
anywhere. I see nothing in any of these men to exclude them, whether they 
are Presbyterians, or Baptists ; and there is not a man whom I would more 
willingly meet than my worthy Catholic friend, the priest, who prays for us 
every few days. These men have a right to go to the Legislature. They 
pay their taxes as we do — they submit to the laws, and they help to sustain 
the government. And if there is a war, do you not see them at the head of 
your regiments, volunteering to pray to the Almighty for the success of our 
arms ? I know the idea of the danger of mixing up church and State has 






EPHRAIM JOINED TO HIS IDOLS. 539 

come to us from the British government. But there we see the church 
having a representation in the House of Lords. I did not intend to make 
an argument, but I rose merely to give the information I hold in my hand. 
But, I repeat, there is no reason why we should exclude them. They have 
the same rights as we have; they are of an age required by law; they are 
native Americans, or, if not, naturalized citizens ; they submit cheerfully to 
the law; they are a virtuous body, and they contribute to the support of the 
government, and, what is more, to the educational part of the country they 
have contributed more than any other class. Why is it we call gentlemen to 
pray for us every day? It is to address the throne of grace. 'But,' says 
the gentleman from Mason, ' there is danger to the country, and, therefore, 
we must have the preamble which has been offered, and the exclusion of the 
clergy.' I am utterly against the preamble and against the exclusion." 

The vote was taken and the result showed that " Ephraim was 
joined to his idols." It stood seventeen against, to seventy-four for, 
the clerical disability clause. "The Redeemer of mankind," said 
Waller, " was crucified between two thieves, and the memory of that 
event can be well perpetuated by classifying his ministers with thieves 
and robbers." 



i-^O BEN HARDIN. 



CHAPTER XXXIII. 

A KENTUCKY MASTER AND HIS RELATION TO DOMESTIC 

SLAVERY. 

SA R.HARDIN spent his life in slave-holding communities, and was 
7 \ himself a slaveholder. For this reason, some notice of that insti- 
tution and his relation to it seems necessary to a justification of some of 
his views and sentiments, and a proper estimate of his character. 
More than a score of years has elapsed since domestic slavery ceased 
to exist among Americans. Many of its incidents and characteristics 
are growing dim in the memory of a new generation. Its history and 
peculiarities have been discolored and exaggerated in literature to 
such an extent that it will be difficult for posterity to justly estimate 
its lights and shadows — its virtues and infirmities. In saying there 
was virtue in it, it is very far from the present purpose to make any 
defense or apology for it. The former slave States are happily rid of 
it, and few and far between are those who do not rejoice thereat. It 
is, however, due the subject of this work to say that there was noth- 
ing connected with the institution as it existed in Kentucky repugnant 
to justice or morality, or incompatible with refinement or humanity. 
Comparing the social, moral, and religious condition of slave-holding 
communities of Kentucky with the average communities in non-slave- 
holding States, their respective balance sheets of virtue and vice would, 
doubtless, not materially differ in the estimation of impartial judges. 
If on one hand slavery had its evils, on the other it had its compen- 
sations. 

African slaves dwelt on George's creek in Pennsylvania, when and 
where Mr. Hardin was born. The earliest American Hardins were 
slaveholders. After American independence was achieved, Pennsyl- 
vania had by law provided for the prospective emancipation of her 
slaves. The denizens on George's creek were unconscious that they 
were affected by the proposed emancipation. They supposed they 
dwelt in the territory of slave-holding Virginia. Only when, about 
that period, the dividing line between the two States was surveyed, did 
they learn their error. It has been supposed (with some show of 



THE "SLAVE CODE." 54I 

probability) that their desire to retain their slave property was one of 
the causes resulting in the emigration of the Hardin family to Ken- 
tucky. 

Prior to it becoming a State, slavery existed in Kentucky, by virtue 
of the laws of Virginia, of which Kentucky was part. No obstruc- 
tion prevented slaveholders from the latter emigrating to Kentucky. 
Not so as to the slave-owners of other States. Virginia had already 
adopted the policy of preventing other than the natural increase of 
her slave population by interdicting importation from other States 
and abroad. But this interdiction was not rigidly enforced. Immi- 
grants from Maryland and the Carolinas flowed into Kentucky in a 
steady stream. It was believed to be beyond the power of Virginia 
law-makers to forbid bona fide settlers from bringing their slaves with 
them for their own use. The right to do so was claimed under the 
Federal constitution, then newly adopted. But having conceded this 
right, no emigrant was allowed to bring with him slaves imported 
from Africa, the West Indies, or elsewhere beyond the sea, subse- 
quent to the year 1789. No slave whatever, could be brought for the 
purposes of merchandise. The same policy marked the legislation of 
Kentucky after it became a State, a policy that had its culmination in 
the law of 1833, absolutely forbidding importation from other States. 

Among the earliest acts of statehood, Kentucky adopted the 
statutes of Virginia then in force, respecting slaves and slavery. 
These have sometimes been called, by those who condemned them, 
the "slave code." To judge it or the men who framed it from the 
altered standpoint of these times, would be foolish and unfair. To 
understand those laws, and appreciate the motives of the men who 
framed them, the situation of the country, the nature and surround- 
ings of slavery, and the prevailing current of thought of that day 
must all be taken into account. If it seem harsh that a slave caught 
away from his owner's premises without a written pass was subject to 
lashes, it should be remembered that his young master, attending 
the old-field school-house, was receiving similar fare for no greater 
improprieties. 

The personal treatment of slaves under the "code" will bear 
favorable comparison with the treatment of white sailors in the 
American and British navies for the same period. The "code" 
itself does not fully or fairly indicate the contemporary sentiment 
of the State as to slavery. The latter, practically, modifie'l the 
harsher features of the former. So public sentiment, in later times, 



542 BEN HARDIN. 

suspended the "blue laws" of New England. Practically, the rela- 
tion of the Kentucky master to his slave was not that of owner and 
chattel, bat was patriarchal in character. The slave was a dependent 
in the household of which the master was head. 

The pioneers brought their slaves with them in their earliest jour- 
neys across the mountains. The slave shared the dangers that beset 
his master, and oftentimes his bloody fate. Stories are plentiful in State 
history and tradition of black heroes encountering death at the hand 
of savage foes to protect the master and his family. Not only did he 
share the perils of his master, but likewise the toils and vicissitudes 
of the wilderness. In sports, master and man were not wholly sepa- 
rated. If the one spent his days in fox-chasing or deer-driving, at night 
a sportsman not less enthusiastic emerged from the "quarters," 
accompanied by his faithful dog in quest of opossum, coon, or rabbit. 
The incense of the saddle of venison on the master's table, was fairly 
rivaled by the not less savory roast rabbit and opossum that graced 
the board of the dependent. 

Not unnaturally, the slave became identified in feeling and sentiment 
with his master's family. He rejoiced at its prosperity, and was gen- 
uinely distressed by its sorrows and misfortunes. If he gave his labor 
to his master, the latter in return sheltered and clothed him ; defended 
him from the injuries of others ; supported him when sick or too old to 
labor, and, at last, gave him Christian burial. Examples of the child- 
like affection and confidence existing between these humble depend- 
ents of the household and the master and mistress could be indefi- 
nitely multiplied. " Let Mas' John hold my hand," said a slave near 
death, "and I will not mind dying," and as the master did so, the 
sinking soul fluttered fearlessly and peacefully out to meet the Merci- 
ful Master of all. 

Large slaveholders in Kentucky were the exception. This circum- 
stance ameliorated the relation. Mr. Hardin thus expressed himself 
on this point in a speech in Congress in 1820: 

"Do we not know that the happiness and comforts of slaves depend 
upon a few being owned by one man ; for, when hundreds are thrown 
together upon one place, under an owner who knows them not, who has no 
affection for them, miserable, indeed, is their condition ; but, on the other 
hand, when a few only belong to one man he knows them, he loves them, 
he considers them a part of his family ; some have been the companions of 
his youth ; others are raised by him, and are the playmates of his children. 
There is, then, a mutual affection between the white and black part of the 



LIGHTS AND SHADOWS. 543 

family. When in this situation they arc truly happy, so far, at least, as is 
consistent with slavery. They want nothing; they are crossed by nothing. 
The last is a source of felicity that we poor busy politicians never know." 

Agriculture was the chief pursuit in which slave labor was 
employed. The master usually directed their labors. The able- 
bodied sons of the family shared, not unfrequently, the toils of the 
field. Some of the best work was performed when a slave competed 
in skill and endurance with a Caucasian rival. Associations of this 
kind created ties not forgotten when the young master succeeded to 
the rights of his ancestor. At corn-shuckings, log-rollings, road 
workings, and other gatherings of the laborers of the neighborhood, 
the color line was no obstruction to the free and hearty enjoyment of 
all. In almost every slave-holding family there was an institution 
known as the old nurse, whose gentle lullaby was among the earliest 
of musical sounds that had fallen on the ears of her infant "mas- 
ters" and "mistresses." She had watched her young charges like 
unfolding buds bloom and blossom in all the interesting stages from 
babyhood to maturity. She had been all this time a second mother 
— watching in sickness, counseling in trouble, and soothing in sorrow. 
Her motherly rights — -thus earned — were, as a rule, always affection- 
ately recognized. 

As in all times, in all countries, and among all people, there have 
ever been good and bad people, so there were good and bad masters, 
and good and bad slaves. To judge the institution by the conduct of 
bad masters and bad slaves, would not be less fallacious than to con- 
demn all parents because here and there brutal ones may be found. 
Cruel and hard masters there were, whose harsh treatment of their 
slaves was without palliation or excuse. 

They always lived, however, under the ban of a just public senti- 
ment. When now and then an outraged slave stealthily avenged his 
wrongs, there was a sense of public relief when the law allowed him 
to go free. Good masters usually made good slaves. Bad masters 
and vicious slaves gravitated toward each other. The former rarely 
sold his slave voluntarily, except to unite husband and wife, or for 
some like commendable purpose. When death or financial misfort- 
unes caused compulsory sales, good masters were usually the most 
generous buyers. The character and disposition of a slave always 
entered largely into the question of value. As a rule, he was as com- 
fortably clothed and lodged, and as bountifully fed, as the laborer of 
free communities. Care was taken in regard to his health. Medical 



544 



BEN HARDIN. 



attention was furnished in sickness. It most usually happened that 
indisposition resulted from his own indiscretion disconnected with his 
master's service. Few were the slaves injured by over-work. Health 
and vitjor were elements of value which no sensible master would 

o 

sacrifice. 

There was much ground for the argument that slavery had ceased 
to profit the slaveholder of Kentucky, years before its overthrow. It 
is true there was, if rightly managed, a profit on the labor of the able- 
bodied slave. But this profit most usually was largely consumed in 
maintaining that part of the colored household unable to labor from 
youth, disease, or infirmity. This was Mr. Hardin's experience. "If 
it were not," said he, "for supporting my slaves, I would never go 
near a court house." The law made, it the duty of masters to main- 
tain their old and helpless slaves. This duty passed by inheritance to 
the heir at law. 

Slaves rarely ever received any education in the ordinary branches 
of learning. It was not practicable to educate them thus. It was not 
necessary to their efficiency in the sphere they occupied. While it was 
unfortunate that this was so, in view of the moral teaching they might 
otherwise have enjoyed, there was compensation in their exemption 
from the temptation into which crazed enthusiasts (who thought insur- 
rection and murder commendable virtues) might have led them. While 
one wrong does not justify another, yet self-preservation is the high- 
est law. 

Slaves were allowed the privilege of religious instruction and divine 
worship. In every church edifice, seats were set apart for the occu- 
pancy of colored worshipers. Yet they not unnaturally preferred the 
religious ministrations of their own race. The educated white minis- 
ter was not as fully apprehended as the less cultured but more sym- 
pathetic and unctuous colored one. Almost every neighborhood had 
its negro preacher, whose credentials (if his own assertion was to be 
taken), came directly from the Lord. He was usually, though not 
always, sufficiently educated to read the Bible and hymn book, and 
had views more or less lucid on a few doctrinal points. He had a 
general idea of the moral law, and felt himself the inferior of none as 
a discerner of spiritual things. Once in a while, a colored preacher 
lost influence with his congregation by drinking too deeply of the 
Pierian spring. Too much learning raised him out of their orbit. An 
unfortunate of this class was given to saying many fine things that fell 
on stony ground. On one occasion before a crowded church full of his 



SLAVERY AGITATION. 545 

own race, save a few white auditors on a rear bench, old Peter thus 
broke forth : " One of the most glorious events recorded on the pages 
of history is the voyage of Christopher Columbus when he crossed 
the Atlantic and discovered a new world. But grander and more glori- 
ous was that later voyage, when the Mayflower outrode the storms of 
the ocean and brought the Bible to America."' 

The agitation of abolition and other questions affecting the institu- 
tion of slavery was unfortunate in many respects — one of which will 
be mentioned. Unaffected by extraneous circumstances, the idea 
that slavery was unprofitable in Kentucky would have been productive 
of substantial results. At one period, the sentiment in favor of gradual 
emancipation had considerable growth. But now and then an emissary 
was detected in the State from abroad, either assisting slaves to escape, 
or, still worse, inculcating ideas of insurrection. A circumstance of 
this kind effectually suppressed the sentiment in favor of emancipation 
that had required years for development. When the abolitionist 
preached a "higher law " to nullify those laws protecting slavery, the 
slaveholder had recourse to his Bible to justify his right and title. 
Sharp debates were held on the theological aspect of the question. 
A notorious political divine published a stout volume, in which the 
testimony of the patriarchs and prophets, as well as the acquiescence 
of the apostles, were placed in the pro-slavery side of the scales.* 
Mr. Hardin was the friend of slavery, but questioned its divine origin. 
"Neither the Old Bible nor the New Testament," said he, "author- 
ized slavery. It was only recognized as in existence." 

In the constitutional convention of 1849, tne dogma was urged 
that slavery could not be disturbed even by constitutional action. 
This idea was ridiculed by Mr. Hardin. "I protest," said he, 
"against wrapping up negro property as some midwife would wrap 
up a woman in sixteen blankets, because she has had hard labor." 
He opposed the doctrine of emancipation. He thought it better for 
both races that the black remain in bondage. An indulgent and kind 
master himself, he decided from the condition of his own slaves as to 
what was best for all. He owned about forty, one-half being adults. 
He never chastised one of his grown slaves, and rarely one of the 
younger. They all reverenced him and obeyed him for that reason, 
rather than fear. He clothed and fed them well and allowed them 
larger liberties than most masters. 

fie often brought suits to recover the freedom of negroes held in 
slavery. Faithful to all clients, he was not less so to these helpless 

*W.G. Brownlow, of Tennessee 7 C 



546 BEN HARDIN. 

ones. He could have little hope for reward in case of success — on 
failure, none. A characteristic incident is related of one of this class 
of cases. In a suit to recover freedom for a colored client, the evi 
dence necessary for success was a will, executed and probated ( if at 
all) somewhere in Virginia. After repeated efforts he had failed to 
discover the desired document. Term after term of court he had 
managed to obtain the continuance of the case, but delay had proved 
of no avail. Meantime, his client had been hired out under order of 
court, and his wages held subject to the result of the suit, and a con- 
siderable fund thus accumulated. Finally, the claimant of the negro 
sent his attorney to Mr. Hardin to propose a settlement, by the terms 
of which the suit was to be discontinued, and Mr. Hardin to receive 
all the proceeds accumulated from the hiring. The case seemed hope- 
less, and the offer was tempting. Further contest promised no 
benefit to his client, and to be fruitless in a pecuniary view to himself. 
Hut dearer than all price was the sense of duty done. "Tell your 
client," said Mr. Hardin, "that I will not accept his offer; that I 
would as soon think of selling my Saviour as abandoning that negro's 
case." Virtue, this time, proved its own reward. He obtained one 
more continuance, and by another term had procured the missing will, 
and won his client's freedom. 

A luckless class in slavery days were the free negroes of Ken- 
tucky. They largely suffered the disadvantages of both freedom and 
slavery, with few of their compensations. They were socially ostra- 
cised by the white race. Their association with slaves was looked 
upon with distrust. So deplorable was their condition, that at an 
early period a colonization society was formed in Kentucky by chari- 
table people to encourage their emigration to Africa. A more 
friendless, helpless class can hardly be imagined. Nothing better 
illustrates this than the fact that so powerful a leader as Charles A. 
Wickliffe should have introduced and advocated, in the constitutional 
convention of 1849, a proposition to empower the State Legislature to 
make laws punishing them, for other offenses than murder, by banish- 
ment from the State, or by selling them into bondage. Mr. Wickliffe 
said he thought such laws would have a tendency to rid the State of 
that undesirable class of people. He thought the State might some- 
where procure territory for a penal colony. Africa was suggested. 
Mr. A. K. Marshall opposed the establishment of the penal colony 
in Africa, on the ground that it might interfere with the success of 
the colonization society in inducing voluntary emigration there. Mr. 



REMARKS AGAINST BANISHMENT. 547 

Hardin was not only opposed to a penal colony, but also to banish- 
ment or selling into slavery as a punishment for crime. The following 
are the reasons by which he enforced his views, reasons which testify 
also to the clear head and sound heart of their author : 

" I want to strike out those words because I do not think we have the 
power to expel a free negro from this State. The free negro, sir, has a 
vested right to his freedom, and a vested right to his residence here. You 
may pass laws prohibiting a man from setting the slaves he may now own, 
or their increase, free ; you may pass laws providing that if he does, they 
shall not remain in Kentucky ; you may pass laws prohibiting free negroes, 
from other Spates, from coming here; but you can not pass a law, according 
to my understanding, to compel a free negro who is here to leave ; and, to 
convict him for refusing to do that, is, in my opinion, to convict him for 
what is no offense. He has, it is true, no political rights in Kentucky, and 
we know that he is excluded by public sentiment from many social rights ; 
but he owes us allegiance, and we owe him the corresponding right of pro- 
tection. He is bound to obey our laws; he is bound to contribute toward 
the support of our government according to his property, and we owe him, 
in return, what is called local protection. 

''Sir, the Spanish government once put in jail a man of the name of 
Richard Meade ; they had no right to do this, because he had been a long 
time a resident of Spain, and Spain owed him protection. He had not 
become a subject of Spain, but she owed him local protection because he 
owed to that government, while there, local allegiance ; and upon that state 
of case being represented to Spain they released him. If you look into the 
decisions of the Supreme Courts of the United States, and those of the 
admiralty of Great Britain, you will find that an American citizen, domiciled 
in Great Britain when war is declared, is entitled to protection, and their 
vessels, then in British ports, can not be captured, because Great Britain 
owed them local protection; and the same rule applies to British subjects and 
British vessels in this country under similar circumstances. 

" Now we owe to the free negro local protection, and he owes us local alle- 
giance. That allegiance is to submit to our laws, to obey our laws, and to pay 
taxes according to the property he may possess. I would submit to this honor- 
able convention that these negroes are poor human beings, and, upon the 
score of humanity, I would ask, would you treat them thus ? Prevent, if 
you choose, the owner from setting his negro free, but every precept of 
humanity, every law of Christianity, forbids that we should treat them worse 
than we would treat dogs. They have a right to enjoy their freedom, when 
free, as we have to enjoy ours. They have no political rights, but they have 
every civil right that we have ; and what is more, their skin will not be 
black when they go to heaven, and stand before the judgment seat of 



548 BEN HARDIN. 

Christ ; there, sir, they will be robed as white as we are, and we are to 
answer for our treatment to them here. I hope my colleague will not press 
that amendment ; it is at war with every feeling of my heart. They have 
the same inheritance in the blood of Christ that we have, and we are bound 
to treat them with humanity. 

" Sir, what does the amendment propose ? That you have a right to send 
them into banishment, or involuntary servitude, for crime. Then, sir, if 
you carry that amendment, we have a right to define crime. Now, I deny 
the policy of that, and I deny the right of it. And you are to sell them out 
of the State, not as a punishment to keep them from crime hereafter, but 
you are to subject them to slavery upon what we, the whites, call crime. 
Sir, I object to this. 

" But it is said we may transport them. I deny it. Can you send your 
officers with a human being beyond the limits of this State ? Have you 
jurisdiction to send a gang of negroes to any place in the United States? 
No, sir. But the gentleman says we may send them to some country which 
we may acquire. But we can not acquire any country. If we acquire any 
country from foreign nations, it is forbidden by the constitution of the United 
States, which provided that ' no State shall enter into any treaty, alliance, 
or confederation, grant letters of marque and reprisal, coin money, emit 
bills of credit, make anything but gold and silver coin a tender in payment 
of debts, pass any bill of attainer, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility.' 

" Now, sir, no State can make any treaty with any foreign nation. There 
is no reservation of such a power. Can we make any negotiations with any 
lawful prince or king of Africa to which we may banish negroes and make it a 
kind of Botany Bay ? No, sir, we can not do it at all. This is a matter which 
Congress itself can not do. Congress can not appropriate money for the 
purpose of colonizing negroes ; it is not within the power of Congress to do 
it ; and that is the reason why the federal government has never taken up 
the subject. It is provided in the federal Constitution that ' Congress shall 
have power to levy and collect taxes, duties, imports, and excises,' to pay 
the debts and provide for the common defense and general welfare of the 
United States, but it has no power to appropriate money for the purposes of 
colonization at all ; and that, sir, has been decided over and over again. She 
can pay debts and provide for the general welfare of the nation. By the 
'general welfare of the nation,' is meant an implied power given to the gen- 
eral government for the purposes of carrying the expressed powers into 
effect. That is the whole of it ; and, whenever you go beyond that, Con- 
gress is omnipotent as the British Parliament, consisting of kings, lords, and 
commons. 

" But, sir, Congress has no power to appropriate money to send negroes 
to Liberia. I again repeat, I beg, I beseech, I conjure, my colleague not to 



REMARKS AGAINST BANISHMENT 



549 



press this amendment, lie may have the power, and the House may agree 
with him, but I do think it would be a reproach to this convention in the 
eyes of posterity tor hundreds of years to come. Suppose, sir, a negro 
drunk; you call it a crime, and sell him into servitude. Suppose he steals 
a chicken ; you call it a crime, and sell him into servitude for life. Suppose 
he goes fishing on the Sabbath; you call it a crime, and sell him into servi- 
tude. Why, sir, you may make anything a crime if you please. Let the free- 
negroes take the same laws that we have. If they commit murder, let them 
be hung ; if they commit other crimes, let them go to jail or the penitentiary. 
Debar them of any political rights — I am against that : debar them of anv 
social rights — I am against their intermixing with the white population at all. 
When you have done that, you have done all. They have no political rights 
or power; and when we have the power we are bound to protect them. In 
the language of Ulysses, when he bowed in his rags : 

"A suppliant bends, Oh ! pity human woe, 
'Tis what the happy to the uuhappy owe." 



550 BKN HAKDIN. 



CHAPTER XXXIV. 

MR. HARDIN'S OPINIONS ON SUNDRY SUBJECTS. 

SINGLE instances of the extent of vision demonstrate the power of 
sight. When Samson rent the lion's jaws his fame for strength did 
not need its subsequent illustrations for support. Similarly, a man of 
wit and sense may exhibit his powers in a sentence. A few opinions 
of Mr. Hardin have been gathered which are characteristic, and it is 
believed will enable the reader to better apprehend the man. They 
are submitted without any special order, their dissimilar and fragment- 
ary character not allowing any logical arrangement. 

Alluding to the legal aphorism, "That it is better that ninety and 
nine guilty men should escape rather than one innocent man be pun- 
ished for crime," Mr. Hardin observed, "I never saw an innocent man 
convicted, while I have seen a thousand guilty men escape. I believe 
that ninety-nine guilty scoundrels escape for every one that is pun- 
ished." 

He expressed, half a century ago, a view of the form of the British 
government, novel then, but more familiar now: "There never was a 
nation in the world that, except in name and a great many forms, per- 
haps, was more republican than Great Britain. The crown does not 
interfere with the acts of parliament at all. It is not responsible for 
anything that is done — for the king, in the language of their govern- 
ment, can do no wrong. The reason is, that he does nothing. His 
ministers are responsible for all that is done wrong, and they get credit 
for all that is done right." 

He was always perspicuous in his definitions. His distinction 
between a monarchy and republic is elementary. " In a monarchy, 
the power is all in the king, and the people have none except what is 
ceded, and, hence, there are frequent controversies. The people 
claim power as it is conceded, which the king denies. The king claims 
his power as a prerogative, for he is the fountain of power, and the 
people have what he grants, and no more. In a republic, the foun- 
tain of all power is in the people, and the officers have as much power 
as the people grant, and no more. What would be a prerogative in 
the king, is power in the people." 



THE GREAT INFLUENCE OT CITIES. 55 I 

He entertained an exalted opinion of the French nation and its 
people. The enthusiastic sentiments of friendship among Americans 
for Frenchmen dated its origin from the darkest days of the revolu- 
tion. The folly that culminated in the disaster of Sedan has weak- 
ened the admiration this side of the Atlantic formerly felt for France. 
Mr. Hardin thus expressed the sentiments entertained by a majority 
of his countrymen in 1849: "Well, God bless the French nation; 
the French convention was a great thing. It was composed of a pow- 
erful set of men, and it struggled and was convulsed in its effort for 
liberty. Their king turned' against them, and their queen and nobil- 
ity did the same. All Europe declared war against them, and what 
did the French convention do? They accepted battle with the whole 
united crowned heads of Europe, and in the language of Dan ton - 
'the gauge of battle was the head of a king thrown down."' 

One of his arguments against vesting the governor of the Stale 
with an extensive appointing power, was based on the great local 
influence at the seat of government. This, he urged, gave undue 
advantage to those residing there. He spoke thus in the constitu- 
tional convention on this subject: " We are not made of such stern 
and obdurate stuff that we can not be operated upon here. We can 
be softened down sometimes forty ways. There are a great many 
ways in which a young man can be softened down. I will not enum- 
erate them all. Why was it the seat of government was taken away 
from New Orleans? It was because the local power was too influen- 
tial for the people. It was, in consequence, taken to Baton Rouge. 
Why was it taken from Philadelphia? It was because the local power 
was too great for the balance of the people to trust it there. Why 
was it removed from the city of New York? For the same reason." 
All his life he was jealous of the superior influence of towns 
and cities over the agricultural districts, in affairs of government and 
legislation. He evinced this feeling in his speech in Congress on the 
Alexandria canal bill, referred to in former pages of this work.* The 
same sentiment prompted him in the constitutional convention of 1849 
to favor a restriction on the representation of cities. A warm debate 
with James Guthrie (alluded to elsewhere) originated over this ques- 
tion. Speaking of Louisville, he said: "It is as we know a city of 
great influence in the State. There was always a town that stood as 
the metropolis of every State. That town is the one to which our 
exports go and whence our imports come, and from this and other 
causes it has an immense influence in the legislation of the country. 

*See Chapter XIX. 



152 



BEN HAKDIN. 



It is the point to which all news is brought and the newspapers give it 
great and undue influence.'' 

In a speech in the constitutional convention, replying to Hon. 
William Preston, who had eulogized the city of Louisville, he said : 
"The gentleman from Louisville has spoken exceedingly well and in 
fine taste and style. He said that Louisville had a large portion of 
wealth — that Louisville is wealthy and that Jefferson county is so also. 
It is true. It is fortunately situated in the State of Kentucky. It is 
the garden spot of America. But much of that is owing to its posi- 
tion and locality. It seems to me, though, that it ought not to be 
Aaron's rod and swallow up the rods of the other magicians." 

To those residing out of Kentucky, a treat is in store when some 
adequate pen shall write the history of the agitation in the State for 
the removal of the capital from its present location. From generation 
to generation this strife has progressed, with fair prospect of continu- 
ing far out toward the boundless shores of eternity. The debate on 
the question, however, does not seem at all amusing to the Kentucky 
tax-payer, when he reflects that the drafts on the State treasury to pay 
for those discussions would aggregate a sum sufficient to erect an 
edifice eolipsing in magnificence the sculptured grandeur of ancient 
Athens. 

There were reasons disconnected with the question of capital 
removal — not to be mentioned here — why Mr. Hardin did not think- 
kindly of Frankfort. The main capital building, unchanged since the 
time he spoke, he thus described: "If this miserable building, 
drawn after a Grecian temple, and looking for all the world from 
across the bridge (which it fronts) like the end of another bridge to 
the hill back of here — and which is a disgrace to the State — if it 
should take fire, in the name of God, let it burn. We have had two 
capitols burned down, and a meeting-house or two used as such, and 
I don't care how soon we get rid of this mean, contemptible, bridge- 
looking edifice." 

He was opposed to foreign immigration. His opposition did not 
in the least rest on the apprehension of danger from the control of a 
foreign spiritual power — as professed by a political party that sprung 
into life a few years after his death. At the very time he was pro- 
fessing this opposition, he, in common with the whole people, were 
tendering enthusiastic welcome to Kossuth, the Hungarian exile, then 
a visitor in America. His reason for opposition to foreign immigra- 
tion he thus expressed: "I pity the poor Irish, the oppressec 1 Fng- 



FOR KENTUCKY AGAINST THE World. 553 

lish, the Scotch, the French, the Italians, the Austrians, and the 
Hungarians, yet, is it very politic to invite many of them here? We 
have to take care of ourselves. Xo one can help seeing that the pau- 
pers who are coming here in such numbers (or wealthy men, if you 
will have it so) will make a population to press on the means for the 
support of the rest. What will we do with the sixty millions there will 
be in this country in forty years, if this is not stopped in some way?" 
Thirty-six years only have passed since this question was propounded, 
and there is now embarrassment in answering it. The accuracy 
with which the increase of population was estimated indicated a 
sagacious foresight close akin to prophecy. He favored stronger nat- 
uralization laws as a means of checking immigration. He thought 
that character of population undesirable, because ignorant of, and not 
in sympathy with, the principles and institutions of our Government. 
He preferred Americans above the people of other countries, and he 
gave his affection to Kentuckians above all Americans. ' ' I would 
not give one stout-hearted Kentuckian," said he, " for a dozen Cape 
Cod or Passamaquaddy men ; nor would I give a dozen Kentuckians 
for ten thousand of those who dwell, east of the Rhine. I pity them, 
but my feelings are for Kentucky." 

He never wearied in praising his own State and his people. Per- 
haps, he was — 

"To her virtues very kind, 
To her faults a little blind." 

"We are a happy medium," said he, "between the North and the 
South. The Southern orators go off something like the fellow in the 
doggerel song — Jim Crow, I believe — 

" ' There was a Hoosier came to town, 

He swallowed a hogshead of molasses down, 
The hoops flew off — the hogshead bust. 
And he went off in a thunder-gust.' 

"I do think Kentucky has produced not only the best and happi- 
est style of oratory of any State in the Union, but (I may be mis- 
taken) the best in the world. I think there is as general diffusion of 
education among the people of Kentucky as in any other State. I 
recollect a gentleman — I think his name was Smith — some years ago 
taking notes as to the number of persons who could not read or write. 
in a certain town in this State. He had reported every man on the 
grand jury as not able to read or write his own name. They had 



554 



BEN HARDIN. 



been quizzing him, as there was not a man of them who could not 
read and write." 

Mr. Hardin had the most implicit faith in "blood." He believed 
it hereditary — he believed that good and bad qualities passed from 
parent to child, even to the third and fourth generation — by an inex- 
orable law of descent. An honorable ancestry raised with him a pre- 
sumption of honest and virtuous offspring. But if, in the ascending 
line, he discovered a "black sheep," he distrusted the latest genera- 
tion, however remote. 

Individual merit could not dispel the ancestral cloud. The mark 
of Cain, he thought, might be distinguished in his living seed, if any 
there be. To his mind the poet did not exaggerate who spoke of cer- 
tain noblemen, whose — 

" ancient but ignoble blood 



Had crept through scoundrels since the flood." 

This belief constituted all his life a rule of action with him. Not 
unusually, in the court-house, he began with a hostile witness: 

'•What is your name, sir?" 

" What was your father's name?" 

"What was your mother's maiden name?" 

" Who was your maternal grandfather?" etc., etc., 

Until he struck some disreputable strain, when, with a significant 
" Ah!" he would dismiss the witness, leaving the jury to suspect (a 
suspicion he confirmed in argument), that he had detected a lineal 
descendant of the original Ananias. 

Mr. Hardin's views on the powers of a constitutional convention 
were at variance with those of some of his colleagues. The theory that 
a State constitution is in any sense a "contract" with some one, which 
the people have not the sovereign power to abrogate, was more ingen- 
ious than it was substantial. He disputed it. Undoubtedly, he 
announced the true rule for measuring the powers of a convention : 
' ' We have the power to do anything that a nation can do, unless for- 
bidden by the Constitution of the United States, and the laws of 
Congress made in pursuance of it, and the treaties made by the 
United States in pursuance of the treaty-making power. * * * 
There is no restraint upon us, except so far as regards these ; and, if 
it were not for the Constitution of the United States, we might 
declare any gentleman of this convention king or emperor to-morrow, 



OPPOSITION TO FREE SCHOOLS. 555 

and he would be king or emperor until the people saw fit to dethrone 
him, which I suppose they would do very quickly. Well, can we not 
set the negroes free if we choose? I should think so, compensation 
or no compensation, those now in existence, or those hereafter to be 
born." 

The subject of rotation in office is ever recurring, and always of 
interest. Excepting two offices (governor and sheriff) rotation was 
not enforced by constitutional provision. Mr. Hardin especially 
urged the extension of the principle to the judiciary, but in this he 
was overruled. "Nothing in the world, " said he, " so purifies and 
clarifies the political atmosphere as rotation in office; give no man a 
life estate in office. What is the principle that fostered the growth of 
the Roman republic, until from a small city it grew to a power that 
overran the world? It was rotation in office — that no man who filled 
an office the first year should be re-eligible the second. That princi- 
ple was first broken upon by Caius Marius, and from that day may be 
dated the downfall of the Roman republic. You purge your political 
atmosphere by rotation in office." 

He opposed voting by ballot. He believed it would be impossi- 
ble to prevent fraud. "The difficulty was," said he, "that after the 
tickets were counted and destroyed, that there would be no chance to 
detect the fraud." 

Referring to the legislative power to grant divorces — a power 
existing under the constitution of 1799 — he said: "I am very much 
in favor of prohibiting the Legislature from exercising the power of 
granting divorces. It has been a growing evil for twenty years, and 
last year I understand there were some three hundred cases or more. 
It is time to stop this kind of legislation." 

In the constitutional convention, Mr. Hardin was in the minority 
in his opposition to free schools. He was mistaken as to their 
impracticability, as experience has long since demonstrated, but yet, 
some of the reasons against them then existing are inherent in the 
system. In thirty-five years, the occupation of a teacher and of 
teaching has been revolutionized in many respects, and all for the bet- 
ter. The period rapidly approaches when it will justly rank with the 
other learned professions. 

" I have no opinion of free schools, anyhow — none in the world. They 
are generally under the management of a miserable set of humbug teachers, 
at best. The first teacher that a child has, when he starts with his A, B. ( ". 
or is learning to spell b/a, or baker, or absolute, should be a first-rate scholar. 



556 BEN HARDIN. 

He should know exactly how to spell and pronounce the English language ; 
and should understand the art of composition and the construction of sen- 
tences. In the language of Dean Swift, he should have ' proper words, and 
they should be put in proper places.' The worst taught child in the world, 
is he who is taught by a miserable country schoolmaster ; and I will appeal 
to the experience of every man here, who ever went to those schools, to say 
how hard it is to get clear of the habits of incorrect reading and pronounc- 
ing they have contracted at these country schools. For myself, I will say it 
cost me nearly as much labor as the study of the legal profession itself, to get 
clear of this miserable mode of pronouncing, contracted before I went to a 
collegiate school — at the age of seventeen — your would, and could, and 
shouA/, and ail of that. 

' ' I knew a man in Grayson who was called to prove a settlement between 
two litigants, in a case where a small amount, some thirty, forty, or fifty dollars 
was involved. He gave in his testimony, and every now and then he would 
throw in a word of four, five, or six syllables, utterly inappropriate to the 
sense; like putting a magnificent, gilded saddle and splendid bridle, with 
plated bit and curb, on a miserable, broken-down pony, or an ox ; there was 
just about as much propriety in his application of these words; and I saw at 
once he was a country schoolmaster. He had proved the making of the set- 
tlement, and said I, 'When did it take place?' ' On the 39th of October,' 
said he. 'Oh! the 39th of October, you say.' 'Yes, sir.' 'Are you not 
mistaken; was it not the 29th?' 'No, sir. I know the use of words as 
well as you do, Mr. Hardin, and say it was the 39th.' I then asked him 
how many days there were in October. He said he did not exactly recol- 
lect, but somewhere between forty and fifty. ' How many months are there 
in the year ? ' ' Oh ! there you are a little ahead of me, but I know there 
are over ten and under fifteen.' ' You are a schoolmaster?' 'Yes,' said he, 
placing his hands on his hips, and looking very self-important, ' thank God, 
that is my vocation, and I am making an application for a free school up 
here, and I want you to help me, if you will.' ' Sir,' said I, ' I will do it with 
all my heart, for you come exactly up to my notion of a free-school teacher." 

Mr. Hardin thus distinguished between beautiful and effective 
speakers: "The speech of the first," said he, "is like music. It 
charms you while listening to it, but its effect is transient, and when 
the speech ends the impression passes away with the occasion. The 
effective speaker does not, or may not please so well while he speaks, 
but he furnishes his hearer something to think about and carry away 
with him." 

Speaking of biographies, he said there were only two he knew of 
worth reading: " Boswell's Life of Dr. Johnson," and " Southey's 
Life of Lord Nelson." 



OMNIPOTENCE OF THE REPORTER. 557 

Mr. Hardin was not of those who delight to exalt all that is ancient 
at the cost of all that is modern— who habitually depreciate the present 
and praise the past. He enjoyed his surroundings and the virtues of 
his generation, and appreciated them at their worth. "The world is 
advancing," said he, "the world is improving. We appear to be 
standing still, but we move as the world moves in all the arts and 
sciences. We do not see our advancement, but we are advancing. 
The world is improving as well in the arts and sciences generally, as 
in the science of government." 

That great occasions develop great men was never so often and 
singularly illustrated as during the late unhappy civil war. For the 
matter of that, the history of all nations and ages furnishes argument 
to the same purport. 

" Mankind," said Mr. Hardin, " is equal to any emergency. When our 
revolution broke out, how was it ? Great Britain said, you have not a man 
in America who can command a company of regulars; you have no talents ; 
but rhe moment we struck for independence, a thousand, aye, ten thousand. 
showed themselves on the theater of action, both in the cabinet and in t In- 
field. Do you think the Almighty creates men for particular purposes:-' 
No, but it is the natural genius of men to resist slavery and bondage, and 
man in America walked abroad in his own grandeur and majesty. It was 
the occasion that made Washington and all the generals, and all the states- 
men of that day. It was the occasion that made Massena, who fought four- 
teen years in the royal ranks of Louis XVI., and never knew what energy 
he had. So it was with Bernadotte, who fought in our ranks. It was the 
occasion that made Massena, and Bernadotte, Mirabeau, and others." 

Speaking of the imperfections of the new constitution in the closing 
days of the convention, he said: "There is no paper in the world 
that ingenious men can not find fault with ; there is no language used 
that they can not pick holes in ; even the Almighty himself, when he 
delivered his divine laws to the Jews, was not always understood." 

The omnipotence of the reporter in 1835 was as fully established 
as in this year of grace 1 887. Goldsmith evidently had the power of 
a reporter in mind in the lines: 

" Princes and lords may flourish or may fade, 
A breath can make them as a breath lias made." 

If the "pen be mightier than the sword,'' how infinitely more 
effective is the reporter's pencil than all implements of war? Mr. 



558 BEN HARDIN. 

Hardin felt all this. " It is a melancholy reflection, " said he in Congress, 
' ' to see and know how much a man's fame and reputation in this House 
is made to depend upon the attention or neglect of the reporters of 
the debates, or upon their whims and caprices, or their good or bad 
feelings toward the speaker or the cause he is advocating. The pub- 
lic good, however, requires their attendance here, and we must bear 
with them as a necessary evil." 

These illustrations of Mr. Hardin's powers of thought and force of 
expression could be indefinitely extended. Some of them are com- 
mon-place, and others express principles and sentiments open to crit- 
icism. Yet, so he thought and spoke — and from these fragments, 
measure may be taken of the intellectual proportions of the man. 



PERSONAL APPKARANCK. 






CHAPTER XXXV. 

PERSONAL TRAITS. 

Ml R. HARDIN was of striking personal appearance. Stalwart is 
7 I the one word that most nearly describes him. He was full six- 
feet in height, of large bone and frame, but not fleshy. " He did not 
appear," said one who knew him in 185 I, "to be a tall man, but he 
was strongly made, and had evidently been a powerful man, physi- 
cally, in earlier life." Prior to his fiftieth year, he was erect, but about 
that period, from habits of study and inclining his head in deep reflec- 
tion, he acquired a decided stoop in the shoulders. His complexion 
was fair, and reddened by exposure; hair light and reddish in hue — 
fine in texture and worn rather short for that period, and loosely 
thrown from the broad and high forehead. His head was unusually 
large and well set on his shoulders — the latter inclining to droop, giv- 
ing the neck apparently increased length. He was not only broad 
shouldered, but thick and round chested. Ears and nose lame, the 
latter hinting at neighborship with the firm-set chin. In his profile 
there was a decided suggestion of Knickerbocker caricatures. The nose 
was long, slightly aquiline, and when in a speech he paused and pressed 
the end to one side with his thumb — it seemed to share in the humor 
that twinkled in the eye. Eyebrows slightly bushy and projecting 
over the clearest and keenest of grayish blue eyes, which many, in 
describing their penetrating power, called "goose" eyes. Thin lips 
of a rather large mouth bespoke an iron will about the corners. The 
full development of the lower part of the face betokened strength and 
firmness — physical and intellectual. Mr. Webb, who from childhood 
had known Mr. Hardin, says : 

"In person he was tall, and as I first remember him, straight and active. 
Afterward — from 1836 — he walked with a confirmed stoop. He was of a 
spare physique, with much angularity in his general make-up, including his 
features. He was careless in respect to dress, and in general appearance 
slip-shod. His face was thoughtful at all times, and rarely vivacious.'"* 

In early life, the habitual expression of his face was confident, 
placid humor, but later, in moments of reflection, it wore a saddened 

* Letter to Author 



560 



BEN HAKDIN. 



thoughtfulness. Yet always, when in conversation, none was more 
genial in look and manner. His face was capable of a wonderful 
variety of expression. To strangers, he seemed austere, but was 
really not so, except to the impertinent and foppish. In his early 
life, it was the fashion of Western hunters and farmers to wear no 
coat, but instead a short outer garment of the pea-jacket type. This 
fashion still prevails among the elite of Mexican caballeros. Mr. 
Hardin was long addicted to this mode of dress. Ex-President 
Buchanan spoke of seeing him on one occasion, at an early period of 
life, thus arrayed at Elizabethtown, the material of his apparel being 
linen, of home manufacture. In later life, he habitually wore blue 
dress-coats, with brass buttons, varying his other wardrobe with the 
season. While his garments were of the best material, they were not 
always unexceptionable in style or fitting. * But his favorite tailor 
was an old friend, from whose taste he never appealed. A new gar- 
ment on him quickly assumed the appearance of age, but he did not 
discard a faithful friend because of loss of good looks. One who 
remembers him well, says: "As to shoes, he preferred comfort to 
shapely tightness." Because his wrist-bands were often unbuttoned, 
and his shoes untied, he has had an exaggerated posthumous reputation 
for slouchiness altogether undeserved. Foppishness was his aversion, 
and he was fond of antagonizing it ; but in person and habits, he 
observed that cleanliness that one with the instincts of a gentleman 
can never lay aside. 

It was very much a matter of course that Mr. Hardin's habits, 
disposition, and tastes should undergo modification in the course of life 
from youth to age. In youth, he was fond of manly sports requiring 
physical strength, skill, and activity, such as running, jumping, wrest- 
ling, and throwing, and in these surpassed. He loved hunting and 
fishing, especially the latter. He always kept himself supplied with 
fish-gigs, seines, and bird-nets. He was an excellent marksman. His 
taste for these sports he retained to the last. It is related that he 
would take his negro servants and go seining in the Beech Fork, a 
small tributary of Salt river that ran through his lands, supplying 
not only himself, but his neighbors, with abundance of the delightful 
fish that then stocked those waters. 

His ardor in pursuits requiring physical exertion was not only 
abated by increasing years, but, also, by an injury to his right hand, 
received in middle life. He was one day in a " clearing " on his farm, 
busily engaged in burning log heaps and brush, with a view of pre- 

*Lord Macaulay resembled Mr. Hardin in this respect. 




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562 



BEN HARDIN. 



paring the ground for cultivation. While thus occupied some negro 
laborers were felling trees. A tree being about to fall, he was warned 
to get out of the way, but, not heeding in time, was caught beneath 
the falling branches. For a while he was insensible, and it was feared 
he was killed. On returning to consciousness his first observation was 
that " he got out of the way, but the d — d tree turned and followed 
him." He was severely bruised, but the most serious injury was a 
broken hand. The bones of the right hand were so fractured as that 
his fingers were stiffened, and, to a great extent, rendered useless. 
Ever afterward in writing he thrust his pen between his crippled 
fingers, removing it with his left hand to get ink and replacing it 



again. 



He was of wonderful physical endurance. He went in professional 
pursuits from county to county, often traveling from forty to fifty miles 
per day ; and these journeys were constantly made in all seasons and 
weather, and always on horseback, and for great part of the year over 
wretched roads. 

He was cheerful and hopeful always. He was discouraged by no 
obstacle, difficulty, or labor. He seemed to feel himself equal to any 
emergency. He had that mainspring of all great men — indomitable 
will. He was tenacious of purpose, and on whatever he had deter- 
mined, he rallied every energy and resource of his powerful nature. 
" I never saw my father despondent," says his daughter,! "save on 
the occasion of the death of his children." But from these sorrows 
he quickly roused himself, deeming it unbefitting the dignity of life 
to brood over griefs to which all were subject. Yet late in life his 
highest pleasure was in recalling and talking of the memory of his 
precious dead. 

He was self-reliant and self-possessed, and enjoyed the full exercise 
of his faculties in emergencies. His powers of observation and per- 
ception were of a rare order. His mental vision and apprehension 
were clear and strong in their grasp. He was extremely perspicuous 
in statement and easily heard and comprehended. His mind may be 
compared to a locomotive at night in one respect; it illuminated the 
track before it. His hearers had a sensation of having anticipated 
what he was uttering. 

"There were things about him." writes Ken Chapeze Esq.. son of Mr. 
Hardin's distinguished contemporary (Ben Chapeze), "that marked him to 



♦In his speech in R. Logan Wickliffe's case, Mr. Hardin gave a different account, but this, like many 
Other " facts" referred to on that occasion, received the pleasing adornments of a lively fancy. 
tMrs. Kate Riley. 



HABIT OF MEDITATION. 563 

me, though a child, from all other men I knew. He seemed to have a 
clearer idea of what he drove at than others. He talked by gestures, and 
no one ever possessed clearer articulation. His voice was of the ringing 
class. I once heard him, when I was but a boy, making a political speech 
in Hardinsburg. He talked of money, and referred to metals, and, among 
others, referred to iron. I still freshly remember his pronunciation of the 
word bar-iron, which made me feel as though I heard the sound of a bar of 
iron thrown on a pavement of stone." 

"From 1836 to 1840," writes Hon. B. J. Webb, "when I had 
frequent opportunities of seeing him, his walk along the street could 
but remind one of an absorbed thinker. Unless addressed, he sel- 
dom lifted his eyes from the ground, and there was a movement of 
the lips indicative of an inter-communication between his mind and 
the organs of speech." 

If Mr. Disraeli had had Mr. Hardin for his single illustration, he, 
perhaps, would not have expressed himself otherwise than he did in 
his "Literary Character of Men of Genius," concerning the art of 
meditation.* 

"The art of meditation may be exercised at all hours, and in all places; 
and men of genius in their walks, at table, and amid assemblies, turning 
the eye of the mind inward, can form an artificial solitude, retired amid a 
crowd, calm amid distraction, and wise amid folly." 

This habit of meditation was not, in Mr. Hardin's case, for indul- 
gence of the vagaries and figments of fancy. While thus absorbed, 
his mind was engaged in summing up, from his well-stored memory, 
all the facts pertaining to a subject ; sifting and weighing them ; anal- 
yzing and drawing deductions from facts or principles, or construct- 
ing some well-knit argument to be hurled with convincing force in the 
forum at the understanding of court or jury, or from the stump at the 
American citizen at large. 

Allusion is elsewhere made to Mr. Hardin's fondness for church 
singing and religious songs. He enjoyed instrumental music and 
found especial entertainment in the stirring notes of the violin. He 
could neither sing nor perform on any instrument, nor had he such 
insight as qualified him for discriminating criticism of musical per- 
formances. Yet, he could distinguish that particular song or air that 
pleased him from the one that did not, and this was his sole and single 
test of musical excellence. 

* Page 177. 



,64 



BEN HARDIN. 



He was social in habits, fond of his friends, and of excellent collo- 
quial powers. No one had greater adaptability to surrounding cir- 
cumstances. With rich or poor, the rude or refined, the ignorant or 
the learned — with every class he was able to find common ground for 
contact or communion in thought or sentiment. In the most refined 
and intelligent circles he could make himself the center of attraction, 
while his jokes on proper occasion were such as to suit the rudest 
demands. 

•' When I was quite a boy," says Hon. B. H. Bristow (who confesses to 
an abiding interest in everything pertaining to his native State), " I saw Mr. 
Hardin at Elizabethtown, and was greatly' impressed by his kindly interest 
in me, and his accurate knowledge of all my ancestors and their relations 
and connections. Perhaps, one of his most remarkable characteristics was 
his minute knowledge of men and families in Kentucky, with all their rami- 
fications." 

The charge has sometimes been made that Mr. Hardin was a 
coarse and unfeeling man — coarse in manners and disregardful of the 
feelings of others. That a man who did not habitually cloak his 
feelings and sentiments by observing the hollow precepts of Chester- 
field, but, on the contrary, acted as he felt, should now and then have 
appeared rude or uncouth, was, perhaps, not unnatural. But when he 
chose to be complaisant and conciliatory, no one could do so more 
consummately. 

"In 1825," says H. D. Taylor, Esq., of Hartford, " I was quite a young 
man, had studied law and been examined by ludge McLean, and had gone 
to Litchfield to obtain ludge Booker's signature to my license. There was 
at Hartford at that time a lawyer, with more reputation as a land-jobber than 
anything else, who entrusted me with a letter to Mr. Hardin. After my 
arrival, he was pointed out to me, as he lay reclining on a bench on the 
hotel-porch, his feet in slippers, and his hose tops fallen down, leaving an 
uncovered space of ankle. He was not asleep, but seemed in revery. I 
had often heard of him, but saw him then for the first time. I approached 
him, and told him I had a letter for him, delivering it at the same time. He 
rose up, opened it, glanced at the signature, tore it in two, threw it down, 
and again resumed his reclining position, not having uttered a single word. 
For the writer of the letter I had no respect, and he was a character for 
whom Mr. Hardin had no toleration, yet I felt affronted at the reception of 
his epistle. I was outraged and indignant, but said nothing. Shortly after- 
ward, other lawyers arrived in the town, among them my friend Mr. 
McHenry, between whom and Mr. Hardin hearty greetings were exchanged. 



SOLOMON CRITICISED. 565 

Although reluctant, I suffered myself to be introduced by Mr. M. Henry to 
Mr. Hardin. He was not only cordial, but seemed to make an effort to 
entertain me, in which I confess he entirely succeeded. He abounded with 
reminiscences of his school-days at Hartford, which he related in a charm- 
ing way, and, before we parted, I esteemed him more than I deemed 
possible at our first encounter." 

His literary acquisitions were extensive, and always at command. 
Without giving any just ground to be suspected of pedantry, yet, he 
constantly, and in a most interesting way, made allusions to matters 
of learning. Aside from its divine teachings, he greatly admired the 
Bible for its beauties, as well as its wisdom. He was a student of the 
Scriptures, and a fairly-versed theologian. 

Said James Barbour, Esq., of Maysville: 

"My mother was a daughter of John Green; my father a brother of 
Mrs. Hardin. When I was a boy, Mr. Hardin came to Danville (where 
we lived) to attend court — being engaged as counsel in an important case. 
He was invited by my father to be our guest during his stay. He accepted 
the invitation, and remained a week or so. My mother and sister had 
heard a great deal of his roughness of manner, and were not a little sur- 
prised when they came to know him. He was witty, humorous, and inter- 
esting in conversation. My mother and sister wt-re much engrossed with 
the missionary cause, and were delighted to hear Mr. Hardin talk of it 
familiarly and in a most instructive way. His knowledge of the details of 
the subject far exceeded their own, and he grew enthusiastic in discussing 
it. 'Missionaries,' said he, 'have been the great geographers of all ages. 
The ordinary explorer went around the coasts and marked its indentations, 
but the missionaries had gone through the country, and thus disclosed its 
interior conformation to the enlightened world.' He said: 'Solomon was 
a great merchant prince, who had extended commerce and knowledge 
among surrounding nations.' He pronounced him the first great missionary. 
This style of conversation quite won my mother and sister, both of whom 
concluded that Mr. Hardin was not only the most entertaining of men, but 
in his views was especially orthodox. They were, however, not a little 
shocked the last morning of his stay, when he again referred to Solomon, 
the great missionary. He spoke of his enterprise and wisdom, 'but, ' said 
he, ' I have never discovered in the records of all history — sacred or profane 
— a d — der rascal than this same Solomon.'" 

He seldom drank intoxicating liquors. " I have heard him sa\ ." 
observed one who was present, '■ when asked to drink: 'Boys, I will 
fight chickens with you, play marbles, or play cards, but one thing I 



566 HEN HARDIN. 

can not do — I can not drink whisky." Beside this abstinent declara- 
tion, made during one ot his political campaigns, must be placed the 
following incident, related by that prince of story-tellers, Colonel 
Richard Wintersmith, illustrating how all rules are subject to excep- 
tion. 

"I was a young lawyer at Elizabethtown, not especially burdened with 
practice. Mr. Hardin had been the particular friend of my father, and so 
1 had his good-will by inheritance. My brother, Charles, was an excellent 
young lawyer, especially skilled in pleading, and, more than I, a favorite of 
Mr. Hardin. *The latter lost no opportunity of publicly expressing his 
high opinion of my brother's talents. For my lawyership, he had less 
respect. One morning, while stopping at the principal hotel in Elizabeth- 
town, he had arisen early, and I invited him to join me in a social glass at 
the bar. ' It is against my rule to drink liquor, Richard, but as your father 
was my best friend, in memory of that friendship I will drink with you.' 
After the drink, some conversation occurred, in which Mr. Hardin was 
unusually social. I soon proposed another drink. ' It is outrageous, Rich- 
ard,' said he, ' that you should waste your money in this way, but your 
father was my best friend, and it being clear that you are going to spend 
your patrimony anyhow. I, perhaps, have as much right to share it as any 
one.' After the second drink, his tongue was loosened, and he held forth 
in his finest vein, about the time he played the joke on the young fellows in 
a Virginia debating society." 

He was a good walker and fond of it. In that exercise there seems 
to have been for him a pleasing exhilaration favorable to mental effort. 
His pace to and fro in the court-room, during the sessions of court, 
was as familiar as the man himself. He walked with a long, deliber- 
ate, and measured stride — not unlike the stage conception of that of 
the "Prince,' 'or "his grace, the Duke" — except that Mr. Hardin 
superadded an inclination of the body at each step that distinguished 
his gait from royalty. Sometimes one hand was thrust behind, and 
the other employed in gesticulation, while at others he toyed with and 
caressed his crippled hand. In his own house or, in pleasant weather, 
in his yard and grounds he indulged in wrapt thought, striding back 
and forth. He sometimes traveled by stage coaches and steamboats, 
though from necessity rather than choice. The former frequently pro- 
duced sickness, except as he rode outside. 

He was fond of relating the following incident of his stage-coach 
experience. He got into the stage at Harrodsburg one morning before 

I he lite Hon. Charles (I. Wintersmith, of Elizabethtown, was distinguished for great talents. not 
only at the bar, but in many high offices. His literary acquirements were extensive, and his legal learn- 
ing profound, to which were added the graces of a Christian gentleman. 



BESTOWING TITLES. 567 

daylight and obtained a seat between two passengers, who had previ- 
ously entered. He traveled some distance before daylight at last 
entered the stage. He then discovered Dr. Wilkinson on one side of 
him and Murdaugh on the other, both of whom he had shortly before 
prosecuted for murder. "I felt every moment," said he, "as if a 
knife was entering my body, and listened for a pistol-shot besides."* 
His accustomed and favorite mode of travel was on horseback. Never 
fastidious about riding qualities or equipage, he was a good traveler. 
In that early day of bad roads — a day still lingering in many localities 
in Kentucky — there was a freedom, independence, and assurance in 
horseback travel to be found in no other mode. In attending the dif- 
ferent courts of his circuit, going to the State capital, and on various 
occasions to Washington City, he traveled on horseback. He was 
journeying thus when the accident befell him that resulted in his 
death. 

Mr. Hardin had a fancy for bestowing names or titles, which, in his 
mind, harmonized better with individuals than their lawful appellation. 
Elsewhere the reader may have been struck with a similar peculiarity 
of Governor Robert P. Letcher, who familiarly styled Mr. Clay, the 
"old Prince. "f Said a gentleman to the author: " I frequently in 
my boyhood, with my father, did carpenter's work about Mr. Hardin's 
home place. He was entirely familiar with my name, but called me 
"Noble," because I reminded him of an early friend of that name. J 
Another individual he habitually called " Ephraim Smooth," for sug- 
gestive reasons. His old-time friend, Ben Chapeze — the record of 
whose Gallic lineage was plainly to be read in his dark features, black 
eyes, and raven hair — he called the " Black Prince." His kinsman, 
Robert Wickliffe, of Lexington, a man of austere courtliness, he 
dubbed "The Duke." His early rival, Judge Rowan, with his large 
frame, surmounted by a leonine head, with deep, mellow voice and 
splendid presence, he called "the old Monarch." A certain judge 
was only known to Mr. Hardin as "Pontius Pilate." His penchant 
for this kind of invention was turned against him on one occasion by 
Governor Pope, when they were anti-Jackson candidates for Congress 
against each other. The object of each was to win the favor of the 
Jackson men, as the votes of the latter, although greatly in the minor- 
ity in the district, might serve to elect. On the occasion of a debate 
at Mt. Washington, Pope referred to his own respect for General Jack- 
son, and to the contemptuous ridicule with which Mr. Hardin in van - 



*Letter from Attorney-General Garland. t ' ""> Marshall usually called Mr. Clay" Old M.i-icr,' 
imitating the vernacular of slavery. t Louis L. Moore, of Calhoon. 



08 BEN HAKDIN. 

ably treated the old hero, in always derisively calling him " King Jack- 
son." The charge of Pope was entirely accurate, but it so happened 
that the Democrats of that vicinity had not heard Hardin deal with 
his majesty. " Yes," said Mr. Hardin in reply, with an audacity not 
quite candid, " I do call him King Jackson, and the American citizen 
who can meet the hero of New Orleans, with his clear, blue eye and 
tall, manly form, and not feel that he is in the presence of the equal 
of any king that ever sat on a throne, is unworthy to live in a free 
country." It may be observed that " King Jackson's" men in that 
region voted for Mr. Hardin with great unanimity in the following 
election.* 

In his Owsley speech, in 1847, he derisively and persistently called 
Governor Owsley "the distinguished Whig." When Mr. Mitchell, 
his assistant in the secretary of State's office, took the Governor's side 
in the controversy between the governor and Mr. Hardin, the latter 
dubbed him " Duke of Buckingham," and habitually referred to him 
as "his grace, the Duke." In the constitutional convention, he threw 
Mr. Guthrie into a towering rage by a speech, in the course of which 
he called Mr. Guthrie (a man of large physical proportions) "Goliath 
of Gath." Charles A. Wickliffe, a man of courtly manners and dress, 
was either "my cousin Charles," or, if in less respectful mood, " Big 
Dignity." 

Mr. Hardin had an overmastering habit of "talking to himself" — 
a habit which became more confirmed with increasing years. In the 
court-house, on the street, riding horseback, especially whenever 
alone or in motion, the struggling thoughts of his busy brain found 
utterance in subdued mutterings, accompanied by gesticulation. 

The following observations of Mr. Disraeli on the enthusiasm of 
genius are pertinent in this connection : 

"The allusions produced by a drama on persons of great sensibility, 
when all the senses are awakened by a mixture of reality with imagination, 
is the effect experienced by men of genius in their own vivified ideal world. 
Real emotions are raised by fiction. In a scene, apparently passing in their 
presence, where the whole train of circumstances succeeds in all the contin- 
uity of nature, and where a sort of real existence appears to rise up before 
them, they themselves become spectators or actors. Their sympathies are 
excited, and the exterior organs of sense are visibly affected — they even 
break out into speech, and often accompany their speech with gestures."! 



* Mr. Clay always contemptuously referred to Jackson as " the hero" — and John Quincy Adams, in 
his " Diary," disrespectfully called him Dr. Andrew Jackson, in grim allusion to the degree of doctor of 
I lws, absurdly conferred by Harvard. f Literary Character of Men of Genius, page 184. 



HABITS OF SOLILOQUY. 569 

In a will case, where he was assailing the capacity of the testator, 
one of the evidences of mental aberration was the dead man's habit of 
soliloquy, on which he laid great stress. The late Governor Helm, 
for the other side, replied: "If talking to one's self be evidence of 
insanity, what must we think of the learned gentleman who has ju>t 
addressed you? I call your attention to him now as a complete refu- 
tation of his own argument." Meantime, Mr. Hardin had been 
pacing back and forth outside the bar, still arguing the case to him- 
self in undertone, and indulging vehement gesticulation. 

Sometimes in the social circle he would become wholly lost in rev- 
ery — unconscious of his surroundings, and would imagine himself 
busy in some scene passing before his mental vision. An intimate 
personal friend relates the following strange incident 

"A few years before his death, I spent a .Sunday at Mr. Hardin's house. 
He was in high spirits and running over with anecdotes and humorous allu- 
sions. His habit of soliloquy had a singular illustration on that day. In 
the midst of a lively conversation, he suddenly became silent and abstracted. 
Presently he began talking to himself. 'Call the witnesses, Mr. Sheriff,' 
said he, 'call the witnesses, sir, I will give you their names.' He there- 
upon repeated the names of several witnesses in the case of Logan Wick- 
line, charged with the murder of Gray, then pending in Washington county. 
'Be sworn, gentlemen,' said he, 'I will swear you myself,' and he repeated 
the usual oath. He then called the witnesses, one by one, and questioned 
them about the case. He paused from time to time in the attitude of list- 
ening, as though he had heard responses to each question. On completing 
the examination of these imaginary witnesses, he muttered, ' all lies, all 
lies.' At this point, he broke off this remarkable performance, and resumed 
his part in the conversation precisely where it had been thus interrupted — 
seemingly utterly unconscious that anything irrelevant had occurred.'' 

On another occasion, in the presence of several gentlemen, he fell 
into one of these reveries, but was silent. When it ended, he began 
an earnest argument to prove that the misdeeds of humanity are pun- 
ished in this world. To support his views, he adduced many illustra- 
tions. "How about punishment in the next world, Mr. Hardin,"' 
interrupted one of those present. "I don't know, sir," he replied. 
" I know nothing about it. I have never been there." 

When absorbed in this singular manner, it was imprudent to dis- 
turb him. Once he was walking the streets in Bardstown, muttering 
to himself, and gesticulating, unconscious of surroundings. One of 
those impertinent, but well-meaning, fellows, who "rush in where 



570 



BEN HARDIN. 



angels fear to tread," stopped him. "Mr. Hardin," said the man, 
" people say that you are losing your mind, and it seems to me to be 
true." Hardin glared at him a few seconds as though meditating 
means or mode of destruction. "The people say that I am losing 
my mind, do they?" "Yes," responded the maladroit, less confi- 
dently. " Do you know, sir, what people say of you, sir?" "No." 
''Well, I'll tell you, sir. They all agree that you are a d — d little 
fool." Saying which, Hardin passed on. 

Mr. Hardin was accused of being deficient in physical courage. He 
lived at a period and in a locality where and when to be so suspected 
was to his serious discredit. It has been intimated that the edge of 
his invective was sometimes dulled by his fears. It has been said (on 
authority not to be disregarded), that when secure from personal 
responsibility he could denounce an enemy in the most blood-curdling 
way, and profess a fool-hardy daring not surpassed by any age, which 
he did not indulge in less secure circumstances. But he was physi- 
cally disabled from engaging in personal encounters during the greater 
part of his life, and wholly powerless to cope with the pugnacious 
citizen, more abundant in his day than now, who had the grit to engage 
in fisticuffs, and was always ready for the encounter. One who knew 
him, in answer to the author's question as to his courage, responded : 
"he was cowardly, sir; he would run like a turkey. I remember, "contin- 
ued this informant, "an occasion when he came out of the court house 
at Elizabethtown, that a man — somewhat of a bully and ruffian, it is 
true — who was offended at Mr. Hardin's allusion to him in a speech, 
met him, and began cursing and abusing him. He followed him to 
his hotel and cursed him on his route. He followed him into the bar, 
when he ordered his horse, and cursed him there. He followed him 
into the dining-room, and, sitting near him at the table, continued to 
speak of him in his hearing most offensively. Mr. Hardin neverthe- 
less ate a hearty meal, and, during the entire time, paid not the slight- 
est attention to the abuse. After dinner he put on his leggins (which 
he wore at all seasons, in traveling horseback). His horse was brought, 
he mounted, put each foot in the stirrups, examined himself to see 
that he was equipped for the journey, and then, for the first time, 
turning to his maligner, and in a most savage way, exclaimed: ' Dry 
up, you dirty dog, or I will get down there and cut your livers out ! ' 
Saying which, without waiting response, he gave his horse a keen cut 
with a cowhide and rode away, leaving his adversary dumbfounded at 
the denouement." 



MORAL COURAGE. 57 1 

After all, physical courage is a quality in which the most ignorant 
are the equals of the most intelligent, in which the brute excels human 
kind. " Brute " courage, it is sometimes not inappropriately called, 
a term exceedingly descriptive. Mr. Hardin's rare moral courage 
amply compensated for any real or supposed deficiency in the respect 
referred to. He had strong convictions, and unfalteringly clung to 
them in sun and storm. His public career, from the beginning to the 
end, was filled with illustrations of this trait. His part in the Old and 
New Court struggle, and his contest with Governor Owsley, evinced a 
moral courage and an intellectual fortitude rarely equaled. 



572 BEN HARDIN. 



CHAPTER XXXVI. 

SOME THINGS OTHERS THOUGHT AND SAID OF MR. HARDIN. 

GHARACTER, or its manifestations, after all, is a matter resting 
much in the domain of public opinion. It is illuminated or dis- 
colored by the effect of partiality or prejudice on the lens through which 
it is discerned. An enemy and a friend are seen more or less 
truly, but on different sides, and in varied lights. Thus they seem 
antipodal in characteristics, yet, when beheld in like conditions, and 
from similar standpoints, are scarcely distinguishable. These obser- 
vations but amplify the old saying: " No one is a hero to his valet." 
From the valet's point of observation, one does not so appear. 

The witty and philosophic Doctor Holmes was not mistaken when 
he said, that when John and Thomas conversed, at least six persons 
of them were present. There were the real John and the real Thomas 
— two. There were John's ideal John, and Thomas' ideal Thomas — 
four. John's ideal Thomas, and Thomas' ideal John — six.* Two 
others, the discerning reader will perceive, are omitted in this esti- 
mate, assuming, as should be done, that John and Thomas were 
friends. The omitted two are by no means so comely as either of 
the other six. They are the respective John and Thomas as they 
appear to their enemies. 

In estimating the character of one not personally known, the true 
mean will be found between the extreme opinions of friends and enemies. 
Instead of undertaking this formal estimate, a selection of expressed 
opinions, emanating from those who were friends and from those who 
disliked Mr. Hardin, are here gathered. Many of these were pub- 
licly expressed, in his lifetime, and may serve other purposes than 
showing what others thought and said of him. They may throw 
light on some of his motives, and explain many of his actions. Some 
matters that might be alluded to in this connection, will be found 
elsewhere, in the estimate of his character as a lawyer and statesman. 

During his lifetime, the newspapers teemed with notices of him at 
the bar, in Congress, on the stump, and in private life. His large 
and angular physical "make-up" indicated a massive intellectuality, 
jagged and projecting, with which the public were perpetually com- 

* Autocrat of the Breakfast Table, page 61. 



TOM MARSHALL S CRITICISM. 573 

ing in opposing contact. In this contact, the public always came off 
second best, and, to attract attention from its discomfiture, assailed 
him in some vulnerable part, or resorted, in default of other revenge, 
to simple vituperation. 

In the brilliant, but erratic, Thomas F. Marshall," of Kentucky, 
Mr. Hardin had ever a caustic and relentless critic. So unsparing 
were these criticisms as to clearly suggest a feeling of personal hostil- 
ity. The origin of this is probably to be traced to a natural antipathy 
between two children of genius, rather than to any specific casus belli. 
He and Hardin had a debate in the State house at Frankfort, in Janu- 
ary, 1850, on the subject of the new constitution. The resources of \\ it 
sarcasm and invective were in large measure exhausted on either side. 
The antagonism of the disputants was thus intensified beyond all 
reconciliation. A slight idea of the temper of this encounter may be 
formed from Marshall's allusion to it: "We would prefer to hunt 
the lion, even though death were certain from his paw, to engaging 
with a skunk, whose weapons of offense, though not mortal, are such 
as to deprive the conflict of all dignity and honor." Marshall saw 
everything in the light of his passions, and the reader need not be 
admonished that his estimates of an adversary are little to be trusted. 
He thus undertakes a formal estimate of Mr. Hardin's character in 
the "Old Guard," of which he was editor: 

"Within a narrow and vicious circle, Ben Hardin is a good judge of bad 
men. A scoffer and a cynic, with no deep moral sense himself, with neither 
relish nor perception of the sublime and great, he has studied nature in its 
shameful parts, and thinks he knows the whole anatomy of man. A shrewd 
man he certainly is, but shrewdness is not wisdom. He thinks every man 
has his price, and can not conceive of the disinterested at all. He con- 
ceives himself a statesman and a philosopher. He is about as much of 
either as he is of an orator or poet. He could not become the latter, for he 
has no imagination; nor the former, for he has no heart. He knows the 
names of the most celebrated nations of antiquity, and of the more remark 
able men who flourished then, and has a smattering of modern history and 
geography. But of the great and steady movements of human society, and 
of the causes which have retarded or impelled them, of the real prog- 
ress of the human understanding, of the political problems which have 
been, or which remain to be, solved, of the philosophy of history, or the 
science of government, he knows nothing." 

On one occasion in the constitutional convention of 1849, ^ Ir - 
Hardin had ridiculed James Guthrie, the president of that body, for 



574 I!EN HARDIN. 






mispronouncing the word tyrannical — Hardin imitating him in repeat- 
ing it — "terinical;" thus afforded Marshall an opportunity for assail- 
ing Hardin for pedantry and deficient scholarship — an opportunity 
which he thus improved : 

"We do not criticise Mr. Hardin's ignorance, but his pedantry. For a 
man who notices (and cackles over his discovery), the smallest imperfec- 
tion in other men's speech, to be guilty of blunders in his most elaborate 
discourses that would disgrace a stable-boy, might provoke a castigation 
from persons less amiable than we are. Mr. Hardin has fallen in, evidently 
late in life, with Pope's translation of Homer, and Tooke's Pantheon, or 
some other smaller work on the heathen mythology, and he is everlastingly, 
in his talks, boring his unfortunate auditors about Gods and Goddesses, 
Heroes and Heroines. Jupiter and Juno, Mars and Venus, Hector and 
Andromache, Paris and Helen, Achilles and Briseis, Ulysses and Penelope, 
rumble along his discourse like badly-imitated thunder among the wretchedly- 
daubed scenery of some provincial theater. 

"The only one of Homer's heroes he seems to have selected for his 
model is Thersites. Of all the Gods, good or bad, the only one between 
whom and himself we detect the faintest resemblance is Saturn — that mon- 
strous deity who is said to have feasted on his own family, and have 
devoured his own offspring. This is the only chance for an apotheosis ; the 
only means left by which he is to be deified." 

It seems quite possible that Mr. Marshall, while berating Hardin 
for supposed literary sins, was himself offending quite as seriously. 
The above criticism is so very suggestive of Caleb Cushing's attack 
in Congress, in 1835, as to create a strong suspicion of plagiarism. 
Mr. Cushing, referring to Mr. Hardin's habit of quoting to the House 
from Homer, begged "leave to refer to that celebrated author for an 
illustration apropos to the occasion." He regretted "to observe 
upon the floor a disputant who, with neither the courage of Achilles 
for the combat, nor the wisdom of Ulysses for the council, yet with 
the gray hairs of Nestor on his head, condescending to perpetually play 
the part of the snarling Thersites." * 

1 he next criticism of Mr. Hardin is taken from a very readable 
and graphic "Biographical Sketch of Lazarus W. Powell," a former 
governor of the State, published under the auspices of the General 
Assembly. Its author, Hon. Ben J. Webb, knew Mr. Hardin long 
and well ; has himself served the Commonwealth in honorable sta- 
tions, and by his graceful pen done signal service to the literature of 
the State. He admits, privately, that on one occasion he felt 111- 

* Living Representative Men, by John Savage, page 147. See notes to page 278, ante. 



HIS NAME A HOUSEHOLD WORD. 575 

used by Mr. Hardin. While it would be unfair to say the following 
reference was resentful, yet it is but just to say it did not emanate 
from an admirer of his character: 

"The honorable Ben Hardin, or " Old Kitchen Knife," by which soubri- 
quet he was afterward known in the Congress of the United States, was 
undoubtedly one of the shrewdest advocates thai was ever intrusted with a 
client's interest in any court of the Commonwealth. He affected a simplii 
ity in dress that approached slovenliness. He was lank in person, slightly 
stooping from middle age, and exceedingly restless in manner. 
He possessed in an eminent degree the faculty of adapting himself to all 
classes of men. At one time he would appear to be as deeply interested in 
the result of a foot-race, or a wrestling-match, as the most ignorant boor on 
the grounds ; and at other times he would discuss agriculture with the farm- 
ers, domestic matters with their wives, science with the learned, and politics 
with everybody. With talents so diversified, it is not to be wondered at that 
he should have acquired, in the course of time, a reputation for sincerity that 
was not particularly enviable." 

Said this writer afterward : 

" I can not say that Mr. Hardin was regarded with strong affection b) 
any one. Neither can I say that he had any persistent enemies. The regard 
in which he was held was solely due to the public recognition of his great 
talents." 

The next expression as to Mr. Hardin is by a lawyer who has long 
stood at the head of the bar where he practices. He knew Mr. Har- 
din, and had begun to rise in the profession only as Mr. Hardin was 
departing. He pretends no partiality for him, but his well-known 
sense of justice gives great weight to his slightest word. Said he : 
" Mr. Hardin was highly endowed with the best of all the senses — 
common sense. He knew mankind, was a sound lawyer, and a keen 
politician." * 

The following description is by a Kentuckian, a lawyer, long a resi- 
dent of another State, who may well be supposed to express his impar- 
tial impression : 

" My memory does not go back to a time when the name of Ben Hardin 
was not as familiar as a household word in all circles to which I was admit- 
ted. I left Kentucky, however, at an early age without ever having seen 
him. * * * Some seventeen years afterward, I met him at Jackson, Miss. 
He came to argue the great case, then pending in the Supreme Court, between 
S. S. Prentiss and the heirs of Vick, involving the title to valuable property 
in Vicksburg. 

* Hon. Jesse W. Kincheloe. 



576 BEN HARDIN. 

"On that visit I had a few words of private conversation with him, in 
which he said nothing worthy of remembrance. I had often heard him 
described as sloven in dress, and as negligent respecting external appear- 
ance, but I was not prepared for so wide a departure from the customs of 
good society as I then witnessed. An old thread-bare, rusty, and dusty blue 
coat, which had been a misfit from the first; a pair of linsey-woolsey panta- 
loons, bagging, misfitting, and worn to threads at the extremity from being 
trodden under his heels ; coarse shoes, without strings, and which had appa- 
rently never known blacking. Such was the outer Ben Hardin. I can not 
say that a closer inspection of his features and manners did much to remove 
the unfavorable impression made by his general contour. His eye had little 
expression, his features were stolid, and his movements devoid of grace or 
dignity. His general appearance was about that of a plain Kentucky farmer 
in his every-day attire."* 

To a lawyer and a statesman — one who has held the highest office 
in his State, and the highest federal office his State can bestow, one 
whose attainments and talents have adorned every station he has occu- 
pied, to the late John W. Stevenson — Mr. Hardin appeared far differ- 
ently: 

" I have rarely known/' says he, "a more remarkable man. As a law- 
yer, a debater in a popular representative assembly, or as a strong disputant 
on the hustings in the discussion of important constitutional questions before 
the people, like the Old and New Court question, or the cut and thrust of 
political controversy, Mr. Hardin had few equals. So, too, he was a leader 
in every deliberative body of which he was a member. 

••Mr. Hardin's success was in some degree attributable to his strong 
judgment, sterling common sense, and his accurate knowledge of human 
nature. Always ready, original, and suggestive, he was quick, sagacious, 
and powerful. He seized upon the strong point of his case, and held en to 
it with a power and force that was wonderful. Mr. Hardin professed to 
despise all efforts at eloquence or display, and disdained all ornament. He 
spoke with a clearness, directness, and strength that was exceedingly attract- 
ive. His mind was well stored with information, and he had a memory as 
wonderful as it was accurate. He seemed to forget nothing. He was often 
keenly sarcastic and severe — not excited or petulant, but cool, classical, and 
vitriolic. 

" Most unfortunate, too, was it for him on whom his sarcasm fell. In 
the memorable contest which Mr. Hardin, as secretary of State, had with 
Governor Owsley, he, in his defense before a committee of that body, deliv- 
ered a speech, which for power, interest, sarcasm, and originality was une- 
qualed since the days of Edmund Burke. Never have I heard a speech 
whose popular effect was more overwhelming. 

* Preston Hr\y, of Mississippi. 






TRIBUTE OF A WIT TO WIT. 577 

•• Mr. Hardin abounded in anecdote and illustration. I was fond ol him. 
I did not overestimate his power. He was agreeable, edifying, and instruct- 
ive in conversation ; kind to his friends, but hostile to those whom he did 
not admire. None can deny him rare gifts." 

In " Why We Laugh," Hon. Samuel S. Cox, at present United 
States minister at the court of the Sultan, gives the following touches 
to the character of Mr. Hardin : 

••Governor Corwin once told me that Mr. Hardin was the most enter- 
taining man he ever knew. He had an exhaustless fund of anecdote, and 
with it great natural parts and acquired culture. * * * * 

"It is said that Mr. Hardin was a rough-and-ready debater, that his ora- 
tory was racy of the Kentucky stump and soil, and that he had more pug 
nacity than polish. He was known by the soubriquet of ' Meat-ax Hardin.' 
Randolph said of him that he was ' a butcher-knife sharpened on a brick- 
bat.' This is not my impression from the meager report of his speeches or 
from the articles now being published about him by Mr. Haycraft, of Eliza, 
bethtown, Ky. It is not the true impression. 

" Mr. Hardin was a man of disciplined mind. He was not at all of the 
Crockett- Boone order. He had a native chivalry and independence which 
were a representative of a border class at that day, but he was a man full ol 
classic, historic, legal, and other resources. He had the varied armory whi< h 
equips for general or special debate. Like a good lawyer, and with a won 
derful memory and quick perception, he was the very man for the "01 
sion sudden." But he was of the humorous rather than of the witty kind. 
The butcher-knife is too coarse and the vendetta dirk too polished to describe 
his qualities. * * * It is related of Mr. Buchanan, that in early life he 
went to Kentucky to settle. He saw Mr. Hardin in court, dressed in his 
unbleached linen, careless and clownish. But he heard him argue, and, turn, 
ing from the court-house, he said : ' If such looking men are so smart in Ken- 
tucky, it is no place for me.' * * * * 

" Mr. Hardin's allusions to the classics are not infrequent. He especially 
loved Homer, and, as will be seen hereafter, he became indissolubly linked 
with one of the Homeric heroes, the 'snarling Thersites.' Caleb Cushing 
forged the link in a graceful retort. Was this love of the classics one of the 
levers of this Kentuckian over men ? 

" It is related of him that when one of his own side made a speech, he 
took his hat and left the House. But when Rufus Choate began his first 
mellifluous speech, this 'meat-ax' man lingered and listened, and. listen- 
ing, was lost in rapture. This demi-god of the Western hustings sits fas. i- 
nated and enmeshed by the involutions, all full of depth, and all starred 
with learning, with which Choate delighted his ear and mind. Was there 

37 



578 



BEN HARDIN. 



no refined susceptibility in this rough and hardy man? Choate brought the 
music out of his soul, as the wind does out of the woods. He held Hardin 
as with the glittering eye of the ancient mariner. It was done by no other 
necromancy than the silver tongue and golden thought, interwoven and 
intertwisted by a skill that would puzzle a Genoese filigree-worker." 

A distinguished lawyer and ex-member of a former presidential cabi- 
net, Hon. Joseph Holt, writes that he does not "feel that he could 
contribute any information in illustration of Mr. Hardin's character," 
yet he adds: "He was a man of the most marked individuality of 
character, and this individuality was constantly maintained. He was 
uniformly kind to me, both personally and professionally, so that, 
with a glowing admiration of his wonderful intellectual gifts, the recol- 
lection of him that I cherish is at once grateful and affectionate." 

:|: Colonel Alfred Allen, of the Hardinsburg bar, once prominent 
in State politics, and formerly American minister to China, from his 
boyhood knew Mr. Hardin. In a letter to the author, among other 
things, he says : 

"Mr. Hardin's clothes were loose and ill fitting, although always made 
of the best material suitable to the season. He was studious, and liked all 
sorts of reading matter, especially history. He was a splendid historian, 
and had a taste for fiction, whether in prose or verse, although his quota- 
tions were mostly from the Old Testament, the old poets, and ancient 
history. His quotations were always apropos and striking. He never had 
justice done him as a man of letters. I can not just now remember suffi- 
cient to quote a specimen of his pathos, but do remember that his pathos, 
in its place, was as melting as his wit was brilliant and inspiriting." 

In a lecture by Colonel James P. Barbour, before the Historical 
Society of Lebanon, Ky., in March, 1885, on the subject of Mr. Har- 
din's life and character, the speaker commented as follows : 

" Mr. Hardin's education has been criticised and underrated, and it is 
true that he had not the advantages that the young men of this generation 
enjoy. But, with the foundation laid by his teachers in his mother tongue 
and in the classics, added to his great natural endowments, his extensive read- 
ing, etc., I think that in listening to one of his great speeches the keenest 
observer would hardly recognize that the speaker was really suffering from 
any embarrassment in that line. 

"There was never a more original speaker than Mr. Hardin. Whether 
in argument or illustration, in logic or humor, his style and methods were 

* President Lincoln, born in the region where Mr. Hardin spent his life, and familiar with his name 
and fame from his earliest years, always expressed the heartiest admiration for his talents and genius, 
and sometimes entertained his friends by repeating extracts from his speeches. 



A DIASVRM. 



579 



all his own. It has been said that 'brevity is the soul of wit.' With this 
definition admitted, he was certainly not a wit, but in humor and am 
he had few, if any, equals, and in these his methods and execution were 
perfect. 

"He was emphatically a man of the people, the common people, that 
middle class of virtue and intelligence that constitutes the great mass of our 
population. With these his tastes were congenial, with them lie loved to 
associate. From them many of the common sense ideas and happy illustra- 
tions that distinguished his most taking speeches were drawn. There was 
nothing aristocratic about him either in dress or bearing." 

Recently the accomplished writer and author, Dr. Rob Morris, of 
Lagrange, Ky., contributed a series of papers to the leading daily of 
the State, entitled " Jesters With Whom I Have Jested." From one 
of those papers the following extracts are made : 

"As I remember him, Ben Hardin was singularly attractive in person 
and manner. The pert and nimble spirit of mirth seemed to surround him 
as with a halo. His eyes were piercingly bright. His forehead was capa- 
cious and square. In his prominent cheek bones there was a suggestion of 
the aboriginal, and the same was apparent in his oratory. Yet his good 
things were always delivered in a fine, quaint, graceful fashion, that reminded 
me of Felix Grundy and Tom Corwin. * * * Other admirers charac- 
terized Mr. Hardin's methods of sarcasm by various terms. Collins says he 
was pungent, sarcastic, pointed, and energetic — making him an antagonist to 
be feared. The editor of the old National Intelligencer warmed over him and 
his powers of conversation. George D. Prentice, in one of his terse para- 
graphlets, termed him a diasyrm, and when I demanded the definition of so 
awesome a title, he derived it from diasuridzo, which, he said, meant to mock, 
hiss, and ridicule. 

" Mr. Prentice was a great admirer of Ben Hardin, and many a joust of 
humor had the two men, wherein a wealth of fancy and of language was 
served out. I heard him say of Ben Hardin, that in his prime, when address- 
ing a Kentucky audience from the steps of some old-fashioned court-house, 
his jokes fell a hissing shower of hot shot into all parts of the assembly, 
stirring the hearers like an irruption of hornets. This description is verified 
by the recollections of others not too young to remember a man whose work 
was finished a third of a century since. * * * To conclude. Pen Har- 
din knew exactly the pulse of the average jury, and, although keeping his 
arguments and appeals upon the popular level, he never condescended to 
vulgarity. He possessed a singular susceptibility. He was open to ever) 
sense of intellectual enjoyment, and in his generation represented in his own 
district the position which Chauncey Dupuy and S. S. Cox represent as 
humorists at the present time in New York." 



5 So 



BEN HARDIN. 



Among the restless and nomadic Americans, one interesting fact 
has often been verified, and that is, that those swept westward by 
the tide of emigration retain the most vivid recollection of scenes 
and events in the old homes left behind. That chapter of life seems 
closed, and when the book of memory is again opened, the old 
scenes and old times are as fresh as if recorded yesterday. Subse- 
quent occurrences have not blurred nor cross-lined the long-hidden 
pa°"e. To the pen of one of these emigrant Kentuckians, Hon. 
Martin D. McHenry, of Iowa, allied to some of the best blood of 
his native State, and formerly prominent in its politics, and long an 
associate of Mr. Hardin, the readers of this work owe not a little. 
Leaving Kentucky shortly after Mr. Hardin's death, to him, no 
doubt, it seems but yesterday since he last saw the tall, auburn- 
haired, big, and busy-brained friend of his early manhood. Especial 
weight is due his estimate of Mr. Hardin's character. Says Mr. 
McHenry: 

•• I will say that, during all my intercourse with him, and with the hun- 
dreds and thousands who knew him well, and among whom I lived until I was 
fifty years of age, I never heard any man call in question the truth of anything 
he said, or the good faith or reliability of anything he promised. Ben Hardin's 
positive, intelligent statement of facts needed no corroboration. It was an 
end of controversy. His distinct, laconic, defined promise of assurance 
needed no indorsement. Any man who knew him felt satisfied that it would 
be fulfilled, and asked for no witness to perpetuate the recollection of it. 
It was enough that Ben Hardin had said that it should be done." 

In conducting some inquiries respecting Mr. Hardin, near four 
decades after his death, in the vicinity of his old home, and amid the 
scenes where he achieved his career, one significant fact has been 
observed, and that is, that almost every one that ever met him bore 
away some of the intellectual ingots that he profusely scattered along 
his pathway. It is a slight circumstance, but a most forcible illus- 
tration of the mental force of the man. 

" Since I have been judge of this district," writes Hon. Charles A. Har- 
din, of Harrodsburg, "in which Mr. Hardin lived and practiced law, I 
have been astonished at the deep and wide-spread impression he everywhere 
made upon the people. Every man who ever saw and heard him in the 
court- house, or on the hustings, has some vivid recollection of his appear- 
ance and manner, and can repeat some anecdote or illustration he used." 

His intellectual equipment was tersely and aptly epitomized in a 
speech delivered in the Kentucky Legislature in 1867, by Hon. R. 






KEEPING ONE'S FRIENDS IN COUNTENANCE. 58 I 

M. Spalding, representative from Marion county. Alluding to Mr. 
Hardin, he said: "In original genius and natural reach of intellect, 
perspicuity of thought and power of analysis, in wit, in bitter and 
withering sarcasm, and invective, no man in the State was his supe- 
nor. 

Such are some of the things that others said and thought of him. 
Further estimates of his character are made in describing him as a 
lawyer, and in alluding to the domestic and other special phases of 
his life. But to justly estimate it, will require a careful study of his 
whole career, from the humble beginnings of the farmer's boy, until 
the death of the lawyer and statesman, full of years and honor. 

It will be nowhere pretended in these pages that Mr. Hardin was 
faultless, or his character free from infirmities. The diamond has 
flaws and there are spots on the sun. Compensating for his failings, 
however, he possessed a host of manly virtues. He was no Pharisee, 
and had a whole-souled and abiding contempt for a hypocrite. His 
shortcomings were those of his day and locality — and of genius and 
power in all ages. While calumny was ever snapping at his heels, he 
averaged in personal virtue with his associates. That he was "no 
saint," doubtless made him a broader man. He might well have jus- 
tified himself with the reasoning of the philosophic Franklin : 

"For something, that pretended to be reason, was every now and then 
suggesting to me that such extreme nicety as I exacted of myself might be 
a kind of foppery in morals, which, if it were known, would make me 
ridiculous; that a perfect character might be attended with the inconveni- 
ence of being envied and hated : and that a benevolent man should allow a 
few faults in himself to keep His friends in countenance "i 

* See Appendix, note E. f Franklin's Autobiography. 



582 BEN HARDIN. 



CHAPTER XXXVII. 



CLOSE OF PUBLIC LIFE. 



THE constitutional convention completed its labors in June, .1850. 
For a year following that event, Mr. Hardin was occupied with 
professional pursuits and the care of his private affairs. In the sum- 
mer of 185 1 he became a candidate to represent the Nelson district in 
the Senate, and in August was elected. In this it may well be assumed 
that he had some motive beyond the mere honor or the small profit 
of a seat in the State Legislature. Whether he sought some favor 
within the power of the Legislature to bestow — for example, the 
United States Senatorship, or, as seems more probable, desired to 
participate in originating, shaping, and completing that legislation 
necessary to put in working order the Constitution he had labored so 
zealously and diligently to construct, is matter for conjecture. 

The first governor under the new Constitution was chosen that 
same August. The Whigs had nominated Archibald Dixon, of Hen- 
derson, for governor, and John B. Thompson, of Mercer, for lieuten- 
ant-governor ; the Democrats, Lazarus W. Powell, also of Hender- 
son, and Robert N. Wickliffe, of Fayette. In the selection of tickets 
each party had acted with undoubted wisdom and sagacity. All four 
were excellent orators, were well known throughout the State, had 
had large experience, filled many honorable posts with credit, and 
enjoyed the confidence of their respective parties. Dixon was a dash- 
ing leader — apolitical Murat — brave, impetuous, and fiery, and widely 
separated from the emancipation element, at that period supposed to 
lurk in Whig coverts. Powell, to profound political acumen, united 
a magnetic quality of winning and holding friends, and was a very 
Talleyrand in party diplomacy. Wickliffe, nicknamed " greasy Bob," 
was a talented scion of an old and influential family, whose very name 
was a tower of strength. Thompson — genial Jack Thompson — was 
the prince of good fellows, whose heart had been bereaved by death 
in his youth, and, thereafter, he had given all his affections to his 
friends, and these were mankind in general. The campaign was pros- 
ecuted with vigor, but Mr. Hardin took no part; in fact, he had scarcely 



A HORSEBACK JOURNEY. 583 

recovered from an antipathy to the gubernatorial office acquired some 
years before. 

The result was that Powell, Democrat, was chosen governor, while 
Thompson, Whig, received the second place. It is, and has always 
been, a notable characteristic of Kentuckians to wear party harness 
very loosely, when the aspiration of a "clever fellow" (whereby is 
meant a genial, open, and generous spirit) is at stake. Powell and 
Thompson, falling in this category, outran their respective; party 
strength. 

During the following autumn, Mr. Hardin made a horseback jour- 
ney of eighty-four miles to the small town of Calhoon, whither he- 
went to visit his old friend Judge John Calhoon, then in ill health. 
Hartford was in his route, and there he lodged for a night. Referring 
to this occasion, Hon. Henry D. McHenry says: "I remember the 
last time Mr. Hardin was ever in Hartford. I called upon him at the 
hotel, and invited him to my father's house, but being informed of my 
father's absence from home, he excused himself. During the interview 
that ensued, I asked him about the story I had heard of the incredible 
distance he had thrown a stone in his school days. He said it was 
quite true, and he and I walked to a point on the hill, south-east of 
the present jail, which he designated as the spot where he had stood 
and thrown to the bank of the creek, distant four hundred and seven- 
ty-five paces. He described how he had cut soft stones in the shape 
of a watch crystal and learned the art of throwing so the concave side 
remained downward. He thus won a wager made with some boys. 
On the following day, I accompanied him a dozen miles on his jour- 
ney." 

He remained several days at Calhoon, during which time, tin- 
author, barely in his teens, remembers to have seen him — the first 
and only time. An old man sitting on the open porch of the princi- 
pal hotel, his freshly-shaven face having a tendency to healthy 
reddishness, apparently of large frame, becomingly dressed, and seem- 
ingly wrapt in revery. Such was the picture. It is remembered that 

he called on Mrs. G , a widow of the town, not far from his own 

ag-e, whom he had known in girlhood, and had not met in the inter- 
val. He had been an admirer, and jocularly professed to be much 
shocked to see no trace of girlish beauty left ; but his old flame, not 
regarding the subject a matter for jest, took his remarks in dudgeon. 
On his return home, he observed to a person he met that death had 
laid its heavy hand on his old friend Judge Calhoon, and mentioned 



58 4 



BEX HARDIN. 



certain signs of physical failure, which he rightly regarded as pre- 
cursors of dissolution. Yet, while enjoying vigorous health and 
strength, death stood still near the speaker. 

The Legislature convened Monday, November 3, 1851. Its mem- 
bers, for the first time, had been chosen under the provisions of the 
new constitution. It had been provided by that instrument that one- 
half of the senators chosen should hold for two years, and the 
remainder four, and that, on the assembling of the Legislature, the 
length of the term should be determined by lot. Mr. Hardin drew a 
short term. Among his colleagues in the Senate, may be mentioned 
several who had been associated with him in the constitutional con- 
vention: William Preston, Richard D. Gholson, Thomas N. Lindsay, 
and James W. Irwin. Other well-known names were : Martin D. 
McHenry, of Shelby ; Preston H. Leslie, of Monroe ; John C. Walker, 
of Meade, and Sidney M. Barnes, of Estill. The House contained 
a considerable number who had sat with Mr. Hardin in the conven- 
tion, and not a few brilliant men who had missed or not sought that 
honor. 

No attempt will be made to trace the course of legislation during 
the session, nor to refer to the various and important questions dis- 
cussed and decided. The most exciting events that arose were the 
election of two United States senators, something that rarely hap- 
pens the same session. Why it happened on this occasion will 
presently appear. The term of Hon. Joseph R. Underwood, one of 
the Kentucky senators in Congress, was to expire March 4, 1853, and 
it devolved on the present Legislature to elect his successor. On 
joint ballot, the Whigs had a majority of eight over their Democratic 
adversaries, and so it was well understood that only a Whig could be 
a senator. 

At the opening of the session, Mr. Crittenden's name was brought 
forward by his friends, he at the time being absent at Washington, a 
member of President Fillmore's cabinet. His claims were not only 
based on his personal virtues and public worth, his long experience, 
his talents, and his patriotism, but also on the ground of party obli- 
gations. In 1848, Mr. Crittenden, at the behest of the Whig party, 
resigned his seat in the United States Senate to make the race for 
governor. It was urged by his friends that he had sacrificed the 
greater honor, already in possession, for the governorship, only to be 
obtained by a laborious struggle. He had borne the banner of his party 
with honor and to victory. But, notwithstanding all this, there was 



CRITTENDEN AND < LAY. 5.S5 

lively opposition to Mr. Crittenden's senatorial aspirations. That 
respectable clement in his party, disrespectfully known as the " outs,' 
insisted that he had been in office a lifetime; that, however great his 
services, he had been fully rewarded, and that justice demanded that 
he stand aside, and let others share in party honors. 

The Democratic slogan, "rotation," so vigorously proclaimed in 
the then recent constitutional convention, was being echoed through 
the Whig ranks. Mr. Crittenden had, perhaps, not been sufficiently 
pronounced in his opposition to emancipation to win favor with cer 
tain ultra partisans in the pro-slavery winy; of his party. Still, another 
unfortunate circumstance was a cloud on his senatorial sky. Mr. Clay 
had ceased to be his friend. The origin of this breach of ancient and 
oft-tried friendship is traceable to the presidential contest of 1848. 

The Whig party had well nigh despaired of ever attaining national 
success on its defeat in 1844. As the election of 1S48 approached, 
however, its hopes revived. The eyes of its leaders, with a common 
impulse, were turned toward the victor of Mexico — General Zachary 
Taylor. It is true General Taylor was not a statesman, nor versed in 
the policy of parties, or the administration of civil affairs. He was 
accounted a brave and honest man ; a successful soldier, and the lau- 
rels of the Mexican war were fresh upon his brow. These virtues, 
added to the fact of his being a Whig, constituted his claims and qual- 
ifications for the presidency. Yet, as victory with Taylor seemed prac- 
tically certain, the Whigs had early determined upon him as their 
candidate. Mr. Crittenden had very positive convictions on the sub- 
ject, which he had freely expressed. It was understood that Mr. Clay 
acquiesced in these views until within a comparatively short period 
preceding the meeting of the national convention. But he visited the 
Eastern States in the spring of 1848, and while there had received 
assurances that he could not only be elected to the presidency, but 
that he could obtain a larger vote than General Taylor. On his 
return to the West, he accordingly announced himself a candidate in 
a published card. Mr. Crittenden immediately notified General Tay- 
lor's friends that, in obedience to both public duty and private inclina- 
tion, he would support Mr. Clay. Kentucky, however, was so largely 
committed to General Taylor, that it was vain to hope for more than 
its formal support for Mr. Clay, and even the accomplishment of that 
much was matter of doubt. Mr. Crittenden, and Kentuckians gener- 
ally, recognized this as the situation, although Mr. Clay did not. On 
the first ballot, in the Philadelphia convention, seven of the twelve 



586 BEN HARDIN. 

Kentucky votes were cast for Taylor, and on the fourth and. decisive 
ballot, eleven were cast for him and but one for Clay. Defeat was made 
especially bitter to the latter by the disloyalty and faltering of his 
own State. He thought that if Mr. Crittenden had not procured, he, 
at least, had connived at the result. It is probable that he had been 
entirely neutral. He did not believe that, if nominated, Mr. Clay 
could be elected. This want of faith was the sum and substance of 
his sin. But Mr. Clay was exacting with his friends, and lack of zeal 
was an offense which his implacable nature could neither overlook nor 
forgive. So it was that in the senatorial canvass of 1851, Mr. Clay's 
influence was thrown in favor of Judge George Robertson, who had 
been chosen speaker of the House. 

There was still another Whig coterie in the Legislature to whom 
neither Crittenden nor Robertson were acceptable. William Preston, 
Senator from Louisville, led these, who pronounced in favor of the 
defeated candidate for governor, Archibald Dixon. The dwellers at 
the State capital (which was Mr. Crittenden's home) supported him 
with unanimity, and invoked all the powers of the lobby. Enter- 
tainments were of nightly occurrence — in the interest of Crittenden. 
On the floor of the House, Thomas F. Marshall (who had once been 
his law partner) sounded his favorite's praises with that chaste and 
stirring eloquence peculiar to himself. This was parried by the charge 
that Marshall attributed Clay's political success to Crittenden's friend- 
ship, the purpose being to widen the existing breach. 

Notwithstanding Whig ascendency, and despite Crittenden's supe- 
rior strength, yet, it availed not, because of the refusal of the minor- 
ity to enter a party caucus. For the greater part of a month, the 
canvass was waged with spirit and vigor. But the factions agreed on 
nothing save opposition to Crittenden. The friends of the latter 
urged the postponement of the election until another session of the 
Legislature, but this was opposed. For some time, Mr. Hardin kept 
his own counsel on the question that excited his colleagues. His 
relations to all the aspirants were kind. If he had lurking aspirations 
himself, he said nothing to indicate it. For some reason, Mr. Critten- 
den's friends conceived that Mr. Hardin opposed him. The former 
being notified of it, wrote about it from Washington as follows: 

(Mr. Crittenden to Orlando Brown. .) 

" Washington, Nov. 12, 1851. 
"Dear Orlando: Before this can reach you, the senatorial question 
will have been disposed of, and, as I anticipate, by a postponement. Some 



FRIENDS OF OLD. 587 

few letters, and particularly two received from Morehead, lead me to that 
conclusion. Such a result is not the most gratifying to me, but I can bear 
it calmly and patiently. 

"I shall feel some curiosity and interest to know the course of some 
individuals in respect to this election, and will thank you lor the information. 
The course of Judge Robertson and Mr. Dixon does not surprise me, 
though, as I am informed, they have displayed a sort of personally hostile 
opposition to me, for which I never gave either of them a cause. 

"I understand that my old friend, lien Hardin, speaks kindly of me. but 
opposes my election. I confess that in this I have been disappointed and 
mortified. He and I are contemporaries. We have been long asso< iated, 
and have stood together as friends through many years. The path which 
remains for us to travel is not very long, and I regret that he has found it 
necessary to part from me on this occasion. I do not mean to complain ol 
him, but only to express my regret. My feelings and my memory suggest 
to me much more on this subject, but 1 only add, that I think if Hardin 
had considered the matter in all its points of view, his judgment, as well as 
his friendly feelings, I doubt not, would have decided him to take sides with 
me rather than my opponents. There is not the least unkindness toward 
him mingled with the regret I feel on this occasion, and, as the matter will 
all be over before this reaches you, I am willing he should know it. Indeed, 
I wish you would inform him how I feel, and what 1 have here written in 
regard to him. 

"What part does our Frankfort senator and representative take? fare- 
well. Your friend, 

••J. J. CRITTENDEN. 

"Orlando Brown, Esq. 

"P. S. : To my good friends — and better never were — give a hearty shake 
of the hand from me. 

"J- J- C." 

Crittenden's kind expressions were read to Mr. Hardin, and Mr. 
Orlando Brown's allusion to its effect, evinced that neither age, nor 
the rough controversies of life, nor its disappointments, had dulled 
the finer sensibilities of the " old Kitchen Knife." Brown mentioned 
the matter in a letter to Crittenden : 

{Orlando Brown to John J. Crittenden.) 

"Frankfort, December 3, 1S51. 
" My Dear Sir : I propose to say a few words to you about the senato- 
rial election. You and your family and friends are all greatly indebted to 
Mr. Thomas F. Marshall for his devotion to your interests during this crisis. 
He has surpassed himself as an orator in presenting your claims to the grati- 
tude and love of the people of Kentucky. I read to Mr. P.. Hardin what 
you said of him, and the old gentleman's eves tilled with tears. He 
exclaimed, with vehemence: 'My God, sir, it is all a mistake! I have 
been for him, am for him, mean to be for him!' And he has been making 
good his words. Mr. Abraham Caldwell, of the Senate, and your fellow- 
soldier, Cunningham, are the most reliable of your friends. Captain Hawes 
is at our head, and is as gallant a leader as we could have. Neither Hell, 
nor Helm, nor Prock, nor Davis have come near us. The true policy of 



588 



BEN HARDIN. 



your friends is to refer the whole subject to the people. With the people, 
thank God, you are safe ! You will probably be approached by some one 
before long, and may be induced to say : ' Rather than embarass my friends 
any longer, take my name off the list.' Let me beg of you to say no such 
thing. You are not here ; you do not know how things are working. 
Dixon's election will be a Democratic triumph. He and his friends are 
afraid to go back to the people. If the election is postponed, you will be 
the means of bringing the Whig party again into line, and with you as our 
standard-bearer we will triumph in '53. I remain sincerely yours, 

"ORLANDO BROWN." 

To this Mr. Crittenden rejoined in a manner highly creditable to his 
generous nature: 

" I was touched to the heart at what you tell me about my old friend (for 
such I may now call him) Ben Hardin. I felt like breaking at the root 
when I heard that he was against me, for in the days of our youth — of our 
growth— we were together, and have passed thus far through life in more of 
amity and good-will than falls to the lot of most men occupying our position. 
Upon reading what you wrote me, my eyes were not dry. Time gives a sort 
of sacredness to the feelings that arise from old associations and friendships. 
I wish I could live long enough, or had the means of repaying, Orlando, all 
the debts I owe my friends. But therein I am bankrupt, indeed." 

On December 10th, the Whig leaders finally agreed to go into cau- 
cus, it being stipulated, however, that neither the name of Mr. Crit- 
tenden nor Mr. Dixon should be presented. On the meeting of the 
caucus a great number of ballots were had in a single evening before 
a result was reached. It was a free-for-all affair, in which first or last 
nearly every prominent Whig in the State was complimented by a vote. 
The favorites, however, were the lieutenant governor — Thompson — 
Senator Preston, Representative ''Cerro Gordo" Williams, and the 
speaker, Judge Robertson. The result was somewhat unforeseen — 
Thompson being nominated. 

Judge Robertson had been very sanguine of success, and a touch of 
chagrin may be discovered in his allusion to the result. Said he : 

" Between Crittenden and Dixon the balloting was continued for many 
days, some members, who were opposed to both of them, putting up a third 
man on each successive ballot. At last, our party being in imminent danger 
of dissolution, Mr. C. and Mr. D. were both withdrawn, and a caucus assem- 
bled to select a candidate. Some of the members, who were excited against 
me, arranged a platform which would be most likely to defeat the strongest 
man, which was, that every member might nominate whom he desired, and 
that no nominee should be preferred until he had successively beaten every 



CIRCUMVENTING DEMOCRACY AND DEATH. 

other. To illustrate the effect of the programme, we may suppose that every 
letter in the alphabet was in nomination (and it was in this case nearh 
A would be ahead at the first ballot; then he would have to run againsl B, 
for whom all, or nearly all, the friends of the other nominees would von. lor 
the purpose of breaking A down ; then B would have to run against < . who 
would, in the same way, beat him; and soon, the same result would follow 
until Z would beat Y; then Z would run against A. who. of course, would in 
like manner beat him ; and so the same farce would be repeated And just 
so it was in this instance. On the first ballot I was foremost ; C. S. Morehead 
was next; he then beat me, and himself was beaten, as others were sui 
sively until John B. Thompson, who was the lowest on the first ballot, was 
ahead ; 1 then beat him ; and the same round was run again, with the same- 
results, until eight of my friends, despairing of any conclusion of such a 
farce, left the scene. After they had gone, a third round was commenced 
between Thompson and me, when, as 1 believe from various information. 1 
beat him again. But the chairman (my senator) declared him nominated. 
Many members remonstrated, and denied, moreover, that he could, even had 
he beaten me, have been nominated until he had beaten every other com] eti- 
tor. But the chairman persisted, and adjourned the meeting in a storm ol 
clamor, declaring that Thompson was nominated. This having gotten out. it 
was thought best not to attempt to correct the blunder ; and, in this way, 
Thompson, who was the weakest in the race, was made the senator. There 
was no doubt that I, in a fair trial, would have been nominated and 
elected."* 

On the following day (December nth), Lieutenant-Governor 
Thompson was elected United States senator, receiving seventy-three 
votes, to sixty five cast for Francis P. Stone, Democrat. 

At this period, Mr. Clay was the other sitting senator for Ken- 
tucky. Old age and failing health had warned him that he must 
shortly quit the cares, toils, and ambitions of life. It was not antic- 
ipated, either by himself or his friends, that he would survive until 
the meeting of another biennial session of the Legislature. If he- 
died in the interval, the vacancy thus created would be supplied by 
appointment by the Democratic governor, and, of course, by one of 
his own party. This contingency, Mr. Clay and his part} - friends 
desired to prevent, and it was understood that, to this end, before the 
session adjourned, his resignation would be tendered. But the limit 
of the session had nearly approached without any step toward resij 
nation. Mr. Clay was an invalid in Washington city, and tidings 
came that he constantly declined in vitality and strength. At the 
close of December, however, came the long-expected resignation, 

* Life of George Robertson, page 66. 



590 



BEN HARDIN. 



providing by its terms that it should not go into effect until the suc- 
ceeding August. Mr. Clay desired to die in office, and he estimated 
that, by this arrangement, he would not survive his term. On 
December 30th, Archibald Dixon was, after a brief contest, chosen 
to fill Mr. Clay's unexpired term. Mr. Crittenden did not desire the 
fractional term, and so his name was not mentioned. The Demo- 
cratic governor and his friends had anticipated that it would devolve 
upon the executive to fill the vacancy, to be caused by Mr. Clay's 
death, by appointment. The proviso in the latter's resignation seemed 
effectually to preclude this, to their great dissatisfaction. But death 
sadly disarranges the plans and blights the hopes of politicians, as well 
as the laity. Mr. Clay died June 29th, and thus afforded Governor 
Powell opportunity to bestow the senatorship, for a few weeks, on 
that time-honored Democrat, David Merri wether, whose unstained 
public career has extended to this day. 

Mr. Hardin was not given to letter-writing, and little of what he 
did write yet remains, and most of that consists of laconic notes of 
business. A lame hand made penmanship laborious and his writing 
almost illegible. That he could have written entertaining letters may 
be deduced from the following specimen, dated during the present ses- 
sion of the Legislature : 

( Mr. Hardin to Governor William Johnson. ) 

" Frankfort, December 4th. 
"Sir: Your letters have been received and all you asked attended to. 
As to the young gentleman you spoke of, who wanted to read law with me, 
I regret to say I have determined to have no more law students. Butler 
Thomas and Mr. Skinner are here with their papers to cut off about three 
hundred votes from Nelson and add it to Spencer. I am preparing for them 
in the Senate, and I have no doubt I will defeat them. I must return Bards- 
town good for evil, for last summer the town did me much wrong, but that 
is nothing. I will fight for old Bardstown to the death. I did to-day report 
a first-rate bill for the congressional districts — to lop off Anderson and add 
Meade. I presume you get your paper, which gives you the daily news. 
Can you not get Riley and his wife found insane, so their committee can stop 
them from moving to Louisville ? * Your old friend, etc. , 

BEN HARDIN. 

The following interesting account of Mr. Hardin's service in the 
present session, is from the pen of his kinsman, Hon. Martin D. 
McHenry : 

" Mr. Hardin's last public service was rendered as a senator from Nelson 
county in the session of 185 1-2 — the first Legislature elected under the 
present Constitution. I had the honor and privilege of serving with him, 

This humorous allusion was to his son-in-law, the late Thomas W. Riley, of Louisville, who then 
resided at Bardstown. 



NEITHER A LEADER NOR FOLLOWER. 5QI 

being a senator from Shelby. The business of the session was truly import 
ant, as well as very laborious. We had laws to pass in some cases to raeel 
the changes in the new Constitution, and the commissioners, who had been 
appointed for the purpose, reported to the Legislature in bill form a i omplete 
revision and codification of all the statutes of the State of a general nature, 
and we had to take up that work in joint committee, examine, revise, and, 
where necessary, amend every section, and pass the whole as one statute, h 
was truly gratifying to many of us that we had the aid of his large experi- 
ence and sound judgment. He was not, it is true, a member of the joint 
committee, but those of us who had that work to perform found him always 
ready to aid us by his wise counsel. I enjoyed my association with him 
very much, admired and honored him as an eminently able lawyer and 
statesman, and loved him as a kind and patronizing kinsman. 1 did not 
regard him as at all failing from the effects of age. His health was good w hen 
we parted, and I little thought that 1 should never see him on his feet again.'' 
The narrative of Mr. Hardin's public life must now be brought to 
a close. He can not escape that inexorable rule, applied in all ages, 
and among all men, of measuring capacity, ability, and talent by the 
success they have achieved. Yet it must be admitted that it is 
often an uncertain and delusive standard. Mr. Hardin had, by no 
means, achieved all that, in the condition in which he was placed, 
with the talents he undoubtedly possessed, and with the exercise of 
more wisdom in his public career, it was possible, and, indeed, prac- 
ticable, for him to have attained. Slight, indeed, were the circum- 
stances that had limited his political success, but these had been like 
the few extra pounds that retard the racer. He always carried weights. 
In the highest reaches of human effort, trivial, and often accidental, are 
the causes that determine defeat or triumph, obscurity or renown. 

As a member of the United States Senate, an honor he coveted, 
Mr. Hardin would, undoubtedly, have increased his fame. His 
natural abilities, his great attainments, his broad statesmanship, and 
practical patriotism qualified him for usefulness and success in that 
arena. His strong conservatism would have tempered the heat that 
too often marked the discussions of the Upper House in his day. 
But he did not attain that honor, really never making a formal con- 
test for it. He, indeed, in all his life undertook nothing in the way 
of office-seeking that he did not believe he could reasonably attain. 
He knew his strength, and was not less conscious of his weakness. 

As a politician, he had the elements of both. He was, as else- 
where observed, neither a leader nor a follower. The only apparent 
exception to this was his career in the constitutional convention and 



$<j2 BEN HARDIN. 

the votes that preceded. But his leadership there resulted from a 
popular movement for constitutional reform, which he rather led than 
originated. One reason why he was not a leader, was a deficiency of 
that personal magnetism that attracts and retains followers, especially 
followers among politicians. He could ingratiate himself with the 
masses of the people, but when he encountered other leaders he 
became their rival or their adversary. In his contests with these, he 
sought victory, not by conciliation, but by crushing and overwhelm- 
ing. He was lacking in all the arts of the courtier; he belonged to 
the "Commons," not to the "Lords." The result was that while 
popular with the people he was not so with the politicians. 

The people admired his talents and had confidence in his political 
integrity and ability. It was really a confession on his part when he 
boasted that he had sought no honor save at the hands of the people, 
whereby he meant to distinguish the people from those in power. He 
was rarely in favor at court. He had also a besetting infirmity that 
militated against his political success. He was resentful, and when 
he felt misused he often bided his time to avenge himself. It is an 
important political grace sometimes to forget. This was impossible 
for Mr. Hardin. 

His neglect of his personal appearance was another inauspicious 
circumstance. For some offices and in some localities the time in 
State history has been known when indifference to dress was deemed 
a passport to popular favor. When the late William S. Pilcher, noted 
as a rabble-rouser years ago, was a candidate for mayor in Louisville, 
an Irishman expressed the sentiment of others besides himself when 
he ' ' huzzaed for Billy McPilcher. Faith 'an he's the man for me — 
he's nayther proud nor daycent." 

For some exalted offices the most unlettered of the masses of the 
people have always regarded certain outward proprieties requisite — 
on the principle that there should be an external sign of inward grace 
— and have resented their neglect. That Mr. Hardin never wore sen- 
atorial garments was a point against him. Popular ideals can not be 
disregarded without penalty. Slip-shod shoes, ill-fitting coats, and 
slouchiness would have overshadowed the valor of Achilles, and lost 
the Hebrew leader the laurels that crowned him on Pisgah's top. 



AN OLD KENTUCKY HOME. 



CHAPTER XXXVIII 



M K. IIAR I) I N A T II () M E. 



VHEN the mailed knight has removed his armor, only then we 
see the man. Although helmet, and visor, and breast-plate, and 
greaves are no longer worn in this unknightly age, yet mankind, in 
their intercourse with each other, encase themselves with an outward 
demeanor, quite as effectually concealing the grace and shapeliness 
character. Only in the security and privacy of home is the reserve, 
characterizing public intercourse, laid aside, and only then and there 
does the man appear as he really is. 

Mr. Hardin's residence at Bardstovvn was a commodious building 
of brick, of irregular structure. Originally a one-storied building, 
with two rooms in front, to this an addition had been made, on the 
left, of two stories, comprising a large hall and front room, and room 
in rear, with similar rooms above. These added-rooms and the hall 
were unusually large. The hall was entered by a front-door, and in 
the hall a staircase connected with the rooms above. A later tenant 
has added a veranda in front. The outer appearance of the house 
gave no suggestion of architectural thought. The only purpose, evi 
dently, had been to roof in and inclose a given amount of space. An 
exception should be made as to the left gable, above which two chim- 
neys ascended, which were connected by a horizontal wall that 
manifested some intention of accompanying them to their tops, but 
stopped short of that point. Perhaps some fanciful architect caught 
this hint from the webbed feet of water-fowls. With an ample porch 
and rooms to rear, it was, altogether, a commodious dwelling, and not 
suspected, in its earlier history, of being inconvenient, whatever judg- 
ment might be passed on that question now. If lacking the graces 
of colonial or Queen Anne architecture, or the strength of tin- 
Gothic, yet it had within, the elements — elements eluding the reach 
of wealth and the skill of the architect — of an old-fashioned, 
hospitable, warm-hearted Kentucky home. The house was sur- 
rounded by ample grounds, stretching down to the street, to which a 
goodly number of forest, fruit, and ornamental trees added grace and 
comfortable shade. 

38 



594 



BEN HARDIN. 



Mr. Hardin s home was long a happy one. In its sacred precincts, 
austerity was laid aside and the bitterness of sarcasm and invective 
carefully sheathed. The gentle and benevolent sentiments of the 
heart had full and free action. Good humor and hospitality were in 
the ascendant. Hearty good fellowship inspired him and made him 
the most delightful of companions. 

" I remember Ben Hardin," writes a daughter of the late Francis 
P. Blair, Sr., "for, though politically opposed, he was on the kindest 
terms with my parents, and always a heartily-welcomed guest at their 
home. Nothing was enjoyed there more than his stories, rough as 
some of them were. His true-hearted friendship to my father on one 
occasion was often dwelt upon and gratefully remembered by all of us. "* 
If guests came to his home, they were welcome, no matter what their 
rank or station. The dweller of the cabin in the " Knobs," found the 
same open, unreserved greeting in the Hardin mansion that met the 
honored statesman, or the citizen boasting birth and fortune. The 
household was a miniature republic, where the worthy always found 
ready and hospitable admittance, and were treated with perfect equal- 
ity. Its members were proud, not of themselves, but rather each of 
the other. 

Mr. Hardin's mother survived until he had reached the zenith of 
his fame, yet he was always the affectionate and loyal son as when her 
clear head and steady hand guided him safely over all the pitfalls of 
youth. In domestic matters, he ever yielded unqualified deference to 
the good sense of his wife, to whom he was tenderly attached. 

Undoubtedly, the influence of "Betsey Barbour," over her hus- 
band, proved most beneficent. Descended from a stock of proud and 
gentle blood, yet vigorous withal, reared in a home of wealth and 
refinement, and worthy every honor he could win for her or himself, 
she had furnished not only an incentive to effort, but proved herself a 
" lamp to his feet and a guide to his way." She curbed the excesses 
and rounded the angles of his character, purified his impulses and aspi- 
rations, and, by her loving inspiration, gave wings to his genius. 

Toward his children, he was fond and indulgent. He found espec- 
ial delight in their manifestations of sprightliness. The affection he 
felt for his own offspring, begot a tenderness for all children. Dr. 
Burr Harrison was an old friend — personal and political. He was 
prominent as a physician, and well known as a politician. For 
a while, he was a competitor of Mr. Hardin, when the latter was a 
candidate for Congress in 1833. About this period, a personal mis- 

*Mrs. Admiral Lee. 



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596 BEN HARDIN. 

understanding occurred, and they ceased to speak to or recognize 
each other for a year. Dr. Harrison had always been Mr. Hardin's 
family physician, and, somewhat singularly, this relation was not ter- 
minated by the breach alluded to. 

When in his visits to Mr. Hardin's house they encountered each 
other, they passed in silence. This unfriendly relation ended as 
whimsically as it had been maintained. The doctor one day happened 
to overhear Hardin talking very kindly and affectionately to one of 
his (Harrison's) children. "My God," said he, "I can't stay mad 
with a man that loves my children." And thenceforward their friend- 
ship knew no interruption. 

A kind neighbor and a faithful friend, yet, he was not exempt 
from dislikes, and indulged no false pretense or concealments on the 
subject. Usually when at Bardstown, his time was spent in the 
court-house, at his office, at home, or at his mill. He had no place of 
resort other than these. On Sunday mornings, he would frequently 
walk into town, and engage in conversation with idlers he met about 
the streets. On such occasions, his conversation recruited his audience 
with marvelous rapidity. 

His library was large and well-selected. Aside from works on the 
law, it was stocked with an abundant supply of general literature, 
history, biography, poetry, etc. It was one of the most valuable 
private collections in the State, and its owner was not a little proud 
of it. Among his books, he spent much of his time. He was a 
book-lover, and when in out of-the-way places, where libraries were 
unknown, he would devour any insipid waif he could lay hands on, 
with a relish equal to that of the thirsty traveler of the desert drink- 
ing at a scant and muddy pool in a lonely oasis. He has been known 
to spend hours — at such times — absorbed with the contents of a pri- 
mary school book, finding between its simple and rudimentary lines, 
knowledge and wisdom invisible to less discerning eyes. 

By reason of a crippled hand, his penmanship was difficult. Per- 
haps this fact in part explains why he wrote so little. One who knew 
him personally and well, thought him qualified to have excelled in 
literary composition. To a lady who wrote gracefully, he suggested 
the abundant material for an historical romance based on Burr's con- 
spiracy, and urged the undertaking.* 

He was fond of manual labor. When at home, he frequently went 
to the fields where his slaves were employed. He not only directed 
them, but not unfrequently "lent a hand " himself. He sold a large 

* Mrs Mariah Daviess, of Harrodsburg, Ky. 



MILLING, DISTILLING, AND III SBANDRY 



'•>7 



number of hogs one year, and the purchaser complained that he had 
not sufficient help to drive them to market. Mr. Hardin volunteered 
to assist, and spent a day thus. One of his most attractive- resorts 
was a small saw and grist-mill, operated by water-power, on his home 
farm. Napoleon at the head of his army did not feel prouder than 
Mr. Hardin did in the proprietorship of that mill. He would uat h 
the operation of its machinery for hours, in mutt- admiration. He 
assisted in getting logs to the saw and the lumber away, as well 
as filling the hopper and removing the grist. It evidently expi 
to him ideas of power, progress, and philosophy, not revealed to 
ordinary observers. He labored about it not for the profit to result, 
but as a mark of his esteem and respect for a manufacturing estab- 
lishment. 

He had large orchards on his farm. On a certain season, when 
fruit was abundant, he resolved to manufacture brandy. He engaged 
a coppersmith at Bardstown, who yet lives to relate the fact,* to make 
several copper stills. He made brandy that season, though with what 
success is not known. The following year he prepared to resume 
operations, when he discovered that all his stills were missing. On 
investigation, he ascertained that some of his enterprising negroes had 
dismantled them, and sold them, for a trifle, as old copper, to an 
itinerant peddler. He vowed to open many vials of wrath on the 
buyer of those stills, and, for that purpose, to pursue him to the ends 
of the earth. But Mr. Hardin's wrath was of the fierce, fiery, and 
evanescent kind, rapid in explosion, and not less sudden in abate- 
ment. He never afterward manufactured spirits. 

He began farming in early life. He acquired large tracts of 
land adjacent to Bardstown, which he cultivated with the labor of his 
slaves. When not professionally employed, he gave personal atten- 
tion to his farm and mill. The farm was. however, usually in charge 
of the negroes, one of whom acted as foreman. He was an indul- 
gent master, and averse to that discipline by means of which only a 
Kentucky slave could be induced to earn his daily bread. The result 
was, it required the aid of his professional income to support the 
home-establishment. He was not at all discouraged, or even disap- 
pointed, at these results, which he well understood and publicly 
acknowledged. He had a colored foreman, named Bill, whom he had 
implicitly trusted for a long time. Bill's management of affairs proved 
unprofitable, but he, notwithstanding, retained his master's confidence. 
A natural rascal, he finally became so bold in his thievery and mis- 



* Wm. F McGill. 



598 BEN HARDIN. 

doing, as to forfeit his position of trust. Mr. Hardin hired him to the 
proprietors of an iron-furnace, in an adjoining county, for a year. 
Bill did more work that year than he had done in many before. 

To public observation he seemed hedged about with a cold reserve. 
To one who knew him long and well he appeared always to be an 
"absorbed thinker." At home, however, his cheerfulness and hope- 
fulness were exuberant and perennial. He banqueted on good humor 
and all the more generously because of his cynicism elsewhere. But 
there were domestic events that overshadowed his good spirits. One 
of these, the death of his son James, occurred in 1842. Never of 
strong physical constitution, his health, at about the age of thirty, 
had declined, and consumption fastened upon him. 

Graduating at West Point, at twenty years of age, James entered 
the army as lieutenant. After having served during some Indian 
troubles, he grew tired of the life in barracks, during a time of pro- 
found peace, and resigned. He next proposed to study law, but was 
dissuaded by his father, who conceived his talents did not suit him for 
that profession. He thereupon betook himself to the study of medi- 
cine. He first attended lectures at Transylvania, but received his 
diploma from a medical college at Philadelphia. He never practiced, 
but shortly afterward again indulged his inclination for the law by 
beginning its study. In due time he was admitted to the bar and 
began practice with prospects so auspicious as to exceedingly gratify 
his father. His character was marked by dignity, firmness, and an 
extremely high sense of honor. He was happily married to Miss 
Chinn, of Harrodsburg, a beautiful woman. But when life prom- 
ised most, his health gave way, and he rapidly sank to a premature 
grave. 

The death of his daughter Emily — Mrs. Palmer — occurred in 1845. 
It was said by one present, that the pathos of his allusion to this sad 
event, in his Owsley speech, was exceedingly tender and moving. 

The untimely fate of his son Rowan, was the great sorrow of his 
last days. Originally named and christened "Rowan," after Judge 
Rowan — a breach which occurred between the latter and Mr. Hardin 
(perhaps about the "old and new court" epoch) caused "Ben" to be 
prefixed. But, by the name of Rowan he was ever known and 
called. He studied law, and came early to the bar and began prac- 
tice. He also edited the Gazette newspaper at Bardstown for some 
years, and was a felicitous writer. He recruited a company during 
the Mexican war, and accompanied his regiment to the scene of 






ROWAN HARDIN. 599 

action, but saw no service of note, as hostilities were then about con- 
cluded. He represented Nelson county in the Legislature of [848. 1 Ic 
was conversant with current politics, and as a Whig orator was active in 
every campaign of his day. He and his father frequently cat: 
together for State and National tickets, and often their audiences were 
divided as to which excelled in oratory. 

A series of speeches in the State of Ohio, delivered during tin 
presidential contest, resulting in General Taylor's election, were 
regarded in that day, by those who heard them, as unparalleled in 
eloquence and effect. Rowan Hardin's power of thrilling description 
and narration, said a competent judge, would compare not unfavora 
bly with those of Sir Walter Scott. In 185 1, he was appointed by 
President Fillmore, secretary of legation to Gautemala. During that 
year, in a secluded spot in the mountains of the Isthmus of Daiien, 
he was murdered by an unknown assassin. His tragic fate was only 
discovered months afterward, when his bleaching bones were identi- 
fied by papers found on the spot. 

He was bright and vivacious, possessing rare colloquial gifts. I Ic 
was not free from those vices of social life peculiar to a social nature. 
Confident, hopeful, and improvident, he took too little thought of the 
morrow. At the bar, his strength was chiefly in addressing the jury. 
Few men have been better equipped intellectually for the achievement 
of a brilliant career. "It fills me with sadness,"' writes one who 
knew him from boyhood, "when I recall his talents, and think of 
what he might have accomplished, and how he threw all away." lie 
was the pride and idol of his father's heart — his father's favorite and 
weakness. Expressions of admiration for Rowan's abilities were so 
frequent as to attract the amused attention of Mr. Hardin's friends. 
Rowan was his paragon. " In the excitement over the Mexican war." 
writes Mr. Garland, then a student at Bardstown, "Rowan Hardin 
went to the seat of hostilities on his 'own hook.' Shortly after, 
having returned, he called a meeting at the old Baptist church for the 
purpose of relating his experience in Mexico and to recruit a company 
for the service. Rowan was a peculiarly gifted man, and everybody 
(so to speak) went to hear him. His father and mother sat near the 
speaker's stand. In one of his loftiest flights, while the crowd did not 
seem to know whether they were sitting or standing, 'Old Hen,' the 
tears running down his cheeks, turned to his wife: 'Betsey,' said 
he, choking with emotion, "I do believe lie is a greater man than his 
father.' It was a proud night for these two old people." 



60O BEN HARDIN. 

On another occasion, on the elevated plateau where the court-house 
once stood, at Brandenburg, overlooking the waters of the Ohio, some 
hundred or so feet beneath, from which vistas of the river east and 
west stretched out for many miles, Mr. Hardin walked restlessly and 
uneasily to and fro. At length, that which he expected yet feared, 
the steamboat, came in view from above, that bore Rowan southward 
on his last journey. Silently and sadly he gazed upon the graceful 
vessel sweeping by, and as it faded in the west, raising his hand, and 
with a full heart : " Yonder goes the grandest man I have ever known. 
I shall never see him again — never ! " 

"The tragic death of Rowan," says General Preston, "was the 
great sorrow of Mr. Hardin's life, but no unmannerly complaining, 
either in private conversation or in public, revealed that sorrow, but, 
on the contrary, he always manifested a subdued pride and pleasure 
whenever he recalled the memory or alluded to the death of his favor- 
ite son." 



EARLY Kl'.sri.i I FOR RELIGION. 601 



CHAPTER XXXIX. 
,\ lawyer's theology. 

APART from education, early influences, and youthful training, 
there is a side of human nature, either impressed with spiritual 
beliefs or which, in normal natures, is an utter blank, awaiting such 
impressions. 

It may be a quality of mind or soul, or it may be a faculty or an 
instinct. The wild Indian, without revelation or teacher, without 
church or priest, yet has the faith of a "Great Spirit" impressed on 
his soul. It is no answer to charge to superstition these intuitive sug- 
gestions that come, whence, no one knows. 

" 'Tis the Divinity that stirs within us ; 
'Tis Heaven itself that points out a hereafter, 
And intimates eternity to man." 

That a descendant of the Huguenots, exiled for their religion, 
should have had an instinctive belief in Deity and revelation, seems in 
the natural order. That Huguenot faith, that caused its possessor to 
abandon home and country, cross the ocean (wider and stormier than 
now), and brave the perils of a savage wilderness for his faith, not 
only ought to have rescued his descendants from skepticism, but 
should leaven generations of that blood to come. 

At what time Mr. Hardin first gave thought to subjects connected 
with the spiritual side of life can not be determined. For religion 
and its observances, he was early taught respect, and no youthful 
impulse or waywardness ever caused him to treat cither otherwise. 
His devotion to his mother would have insured this much. 

His beloved and faithful wife was a pious woman, and thus another 
tie bound him to the religion of his fathers. His devotion to her 
knew neither "variableness nor shadow of turning." from the bright 
day she became his bride to that dark one, when he heard the clods 
fall on her coffin. They were bone of one bone, flesh of <>ne flesh. 
and kindred in spirit. "I have never," said he. 'seen her on her 
bended knees, without feeling that I ought to go and fall at her side." 

However far short he came of a religious life, yet, it is certain that 
from a very early age, he contemplated the time when he would nuke 
his peace with his Maker. 



602 BEN HAKDIN. 

"I acknowledge very candidly," said he, on one occasion, "and I 
acknowledge it with a degree of shame, that I am not a member of any 
church. I have encouraged my family, black and white, to go to church, 
and I have contributed toward the erection of meeting-houses, perhaps, as 
much as any man, and no one is more devoted to the great Christian scheme 
than I am. But I have never played the Pharisee, nor prayed and bellowed 
in the public streets, nor proclaimed my religion from the house-tops." 

While not free from the use of expletives, that had more strength 
than polish, yet he never used profane language. This assertion is 
based not alone on the testimony of those in position to know, but is 
consistent with his character. Although given to expressing himself 
strongly, yet he never used words save to express ideas. As much 
can not be said of many addicted to habitual profanity, who often 
hide their poverty of ideas by interlarding their conversation with 
oaths. 

One, who knew him well, said Mr. Hardin was a great Bible stu- 
dent. He thought many portions of the Bible peculiarly eloquent, par- 
ticularly the book of Isaiah. He was always religiously inclined, though 
not a member of a church until just before his death. He had a profound 
contempt for any man or woman who spoke disrespectfully of the 
Bible. In his religious opinions he was most decided. He believed 
in Christianity, in the existence of a God, and a state of future 
rewards and punishments. He had no sympathy with the Voltaires 
of his day — the Voltaires, the Humes, and the Paines — and enjoyed 
greatly the ironical satire of Dean Swift, in his petition addressed to 
Bolingbroke and his friend, who had published a tract against Chris- 
tianity. To another, Mr. Hardin once remarked: " The first book for 
a law student is the Bible." Said a minister, himself a scholarly 
divine: "Mr. Hardin was an excellent theologian."* If this sounds 
extravagant, remember that the "Autocrat" has announced that "we 
are all theological students, and more of us qualified as doctors of 
divinity than have received degrees at any of the universities, "f 

It was not until he came to the bar that he began the study of the 
Bible. Indeed, he had read it but little, until after his marriage. One 
pleasant evening, early in his career, as his young wife was sitting at 
the front door of their residence awaiting his return from his office, 
she saw him approaching with a bundle under his arm. When he- 
came in speaking distance, her first question was as to the contents of 
his bundle. "Well, Betsey, I will tell you; Rowan and the other 
lawyers are always quoting scripture on me in their speeches, and d — d 

*The late Rev. S. L. Helm. f Autocrat of the Breakfast Table, page 33. 



THE CHARM OF METHODISM. CftT, 

if I don't intend to know as much of it as they do. This is a Bibl< 
He was not only fond of Isaiah, as above observed, but also of Job. 
"I consider them (Isaiah and Job) the most eloquent I ever read, 

except the twenty-third chapter of Matthew, where it takes hold ol 
those it calls Pharisees, hypocrites, and scribes, and says : ' \Y<> ! unto 
you, ye scribes and Pharisees." " 

His mother was a member of the Baptist church, but his wife was 
a Methodist, and to the latter church he was always inclined. Said 
he, in 1849, " I am not a Methodist, but I am a lobby member, and 1 
believe a good deal in that doctrine. I believe that good works go a 
great way toward getting a man into heaven ; and that they are the 
best turnpikes and railroads upon which one can travel in that direc- 
tion. There is a doctrine, once elected always elected, that I do not 
understand.' 1 

He was particularly fond of both vocal and instrumental music, and 
would frequently attend church to enjoy the singing, and would often 
weep under its influence. 

" When at home," writes a valued correspondent, " he would frequently 
send for his niece and the writer to come to his house and sing for him. 
This was before he had made any religious profession, or disease or infirmity 
had given special warning to prepare for the hereafter. Among his favorite 
hymns were, ' Jesus, lover of my soul,' ' Show pity, Lord ! oh, Lord, forgive,' 
and 'An alien from God and a stranger to grace.' " * 

The following extract is from Dr. Redford's " History of Metho- 
dism in Kentucky:" 

"Ben Hardin and his family were among the best and earliest friends "t" 
the Methodist church in Bardstown, and. in the course of years, became 
members of its communion. Mr. Hardin was peculiarly attracted by Meth- 
odist singing. This was the charm of Methodism to him. II would 
diverge at any time from his regular road on his tour to courts, to enjoy the 
luxury of camp-meeting songs. May Methodism never lose those warm- 
hearted and energetic appliances which won the heart of that great lawyer. 

"An anecdote, related to me both by Marcus Lindsey and Ben Hardin, 
ought, perhaps, to be preserved. Mr. Hardin had turned aside from his 
route to court in Hardin county, to stop at a camp-meeting, which Mr. 
Lindsey was attending. About midnight. Mr. I, indsey observed Mr. Har- 
din about to lie down on some clapboards between two tents. He kindly 
invited him to sleep in the preachers' tent. Accordingly, his guest laid 
down, but about two o'clock, a tremendous shouting was raised in the altar 
over souls converted. Mr. Hardin sprang up very suddenly, and. rubbing 

*Dr. W. A. Hickman. 



604 BEN HARDIN. 

his eyes, exclaimed, with an oath, that if they kept on that way, they would 
kill the devil before day. Mr. Lindsey happened to be near, and remarked 
to him : ' That would be bad business for you lawyers, Mr. Hardin.' 
'Yes,' said Mr. Hardin, 'quite as bad for you preachers, Mr. Lindsey, for 
it would break up both professions.' " 

The religion of the pioneers was, in a high degree, emotional. 
Spiritual regeneration, in those times, was attended with wild shout- 
ings and mental perturbation, seemingly little short of insanity. 
The veritable stories told by pioneer historians of religious enthusi- 
asts falling in swoons, beholding visions, and possessed of the "jerks" 
are rapidly assuming the tinge of romance. While Mr. Hardin was 
always a "believer," his clear judgment and sober reason caused him 
to shrink from participation in such excesses, and to question the 
divinity of their origin. 

The late Bishop Hubbard Hinde Kavanaugh and Mr. Hardin were 
long, warm personal friends. Mr. Hardin was a very infrequent 
attendant on public worship, but was always in the sanctuary when 
Kavanaugh occupied the pulpit at Bardstown. That was in the days 
of the bishop's itinerancy — before he wore the highest honor of his 
church. But he was then conspicuous for piety, learning, eloquence, 
and rare mental gifts. Coupled with these, he possessed a racy wit, 
and herein was " the one touch of human nature," in which originated 
that allied friendship with Hardin that death only sundered. 

While partial to the church of his wife, yet he was broader than 
any church in his views and feelings. When his son William died, 
while a student at the Roman Catholic college of St. Joseph, of Bards- 
town. although little more than a child, no objection was made to his 
receiving the consolations of that church. Afterward the eccentric 
William Downes, a minister of that anti-missionary branch of the 
Baptist church, which traces its origin to apostolic times, fell into a 
theological dispute with a Catholic priest. Mr. Hardin acted as the 
friend of Downes, and a debate was arranged. He supplied Downes 
with a handsome suit of clothes to wear upon the occasion, and, 
according to Spencer (the Baptist historian), the latter came off tri- 
umphant. In the constitutional convention, Mr. Hardin stood almost 
alone with Rev. Dr. John L. Waller, in the unsuccessful attempt to 
defeat the apparently needless restriction against clergymen occupy- 
ing seats in the General Assembly. It was charged to Mr. Hardin, 
to the discredit of his candor and sincerity, that "he was all things to 
all men," that he talked agriculture with the farmer, cooking with his 



NEAR THE NARROW PATH. G05 

wife, medicine with the physician, law with the lawyer, politics with 
the politician, etc. He, undoubtedly, was fond ol discussing the Bible 

and theology with the clergy, though his discussions never degener- 
ated into disputes. His mind was full of that thirsting after truth that 
caused it to drink at every wayside spring that babbled and flowed by 
the path of life. 

Mr. Hardin lived in the constant exercise of many virtues essential 
to Christian character. No one ever suspected him of being in the 
slightest degree a hypocrite or pretender. He was what he was and 
scorned all pretense. Hypocrites, pretenders, upstarts, and parvenus 
were his especial abhorrence. His honesty and integrity \\< re never 
questioned. His word was ever his bond. Much as he delighted in 
professional victor}-, it was never charged that he won it by falsehood. 
He might, in discussing a case, ignore the law and the facts, but if he 
alluded to either he stated them fairly, lie scorned the arts of soph- 
istry and misstatement practiced by small and crafty minds. He was 
sober and temperate in his habits. He delighted in secret charil 
and instances of generous deeds could be recorded touching in the 
delicacy with which they were done. In him, the widow and the 
orphan, the ignorant and the helpless, found an unfailing and constant 
friend. He always acted on the idea, though bound by no religious 
tie, that an account of his deeds was being kept, that much misdoing 
was punished in this world, but that somewhere in the universe and 
at some period in the cycles of time, the account would be settled, and 
that full and complete justice would be done. Such a man, so imbued 
by study with biblical wisdom, had not far to go to find the straight 
and narrow path that leads to life eternal. 



606 BEN HARDIN. 



CHAPTER XL. 

THE END AND HOW IT CAME. 

" There is a time, we know not when, 
There is a line, we know not where." 

J^A R. HARDIN'S sixty-eighth spring was less bright to him than 
_/ \ its predecessors. Year by year the hopes and ambitions of an 
exuberant manhood had grown more subdued. Professional success, 
the honors of office, a wide-spread fame, a comfortable fortune, a 
happy home — all these and more had attended and crowned his career, 
and these, undoubtedly, alleviated the burden of life. But age was 
making inroads on bodily strength and endurance, and the spirits grew 
less elastic. His gifted and manly sons, whom he had idolized and 
from whom he had hoped so much, were dead before their time. 
Rowan, his best beloved, during the previous year had fallen by an 
assassin's hand in a foreign land. 

Old friends, with whom he had started life, were rapidly passing 
down to "dusty death," leaving him with the sensation of lingering 
when the banquet of life was done. If the days were not already 
" few and evil," such a period seemed approaching. But he indulged 
no idle or senseless repining. "Work while it is day," was the motto 
on which he had acted all his life. No task was shirked, no duty neg- 
lected, no engagement unfulfilled. Yet his habit of revery and self- 
communion grew more marked and of more frequent recurrence. 

On the adjournment of the legislative session of 185 1-2 he returned 
home from Frankfort, and resumed his professional labors. On a bright 
Sabbath day in May he left Bardstown to attend court at Lebanon. 
His riding-horse inclined to be easily scared, and his saddle-girth was 
defective. As he was setting out, Mrs. Hardin expostulated with him 
about incurring the danger of the bad girth, but with a smile and a 
jocular remark he rode away. He intended to lodge that night with 
his son-in-law, Dr. Palmer, near Springfield, and so he did. The fol- 
lowing morning, in attempting, while mounted, to open a gate that 
led to the turnpike, the treacherous saddle-girth broke, and he fell to 
the ground. He was so injured as to be unable to rise. Dr. Palmer, 



THE SAME "OLD BEN. " 607 

who had witnessed the accident, hastened to his assistance. A I doc- 
tor P. approached, Mr. Hardin looked up from his prostrate position, 
and, with a smile, repeated the lines from I aims: 

"How many lengthened sage advices 
The husband frae the wife despises." 

As his daughter remarked of this accident, " it was the beginning 
of the end." By the fall the sciatic and sacral nerves were brui 
His wife brought him home to Bardstown in a carriage, hut all that 
affectionate care and nursing could accomplish under the best medical 
advice, while prolonging life, afforded no permanent relief. Mr. Har- 
din soon realized that his recovery was doubtful, and that his concern 
in the affairs of life drew to a close. His sufferings were great, but 
were borne with patient and philosophic fortitude. Many weary 
nights his neighbors and friends watched at his bedside. Among 
these watchers was one, then a law student of Mr. 1 [ardin — since di - 
tinguished by many high offices and now attorney-general of the 
United States — A. H.Garland. " In his last illness," said Mr. Gar- 
land, " I sat up many nights with him, and he was pretty much the 
same 'Old Ben' he was when well." I lis negro man. Bill, a faith- 
ful and tried domestic, fulfilled to some extent the duties of nurse, 
which, however, fell chiefly upon Mrs. Hardin. He often interrupted 
the tedium of confinement and suffering, and illustrated the sayii 
"the ruling passion strong in death," by some humorous observation 
or recital. 

One night as the weary hours dragged their slow length along, 
Bill, who aspired to freedom (but to whom freedom would have mani- 
festly been a misfortune), concluded it was an auspicious time to m 
his wishes. "Mas' Ben," says he, interrupting a protracted silenc . 
"what will become of poor Bill if you should die?" " Ah ! Bill, I 
don't know," answered the sufferer, and the matter dropped. After 
the lapse of an hour or so, Bill concluded to introduce the subject 
again: " Mas' Ben, you are mighty sick." " Yes, Bill, I am mighty 
sick." " I hope," rejoined the negro, " you is going to gel well, but 
I don't know what is going to become of poor Bill if you should die. 
" Well, Bill, I can tell you exactly what will become of you; I have 
already made my will and appointed Tom Linthicum and Bill Johnson, 
my executors. In a few months after my death, Tom Linthicum will 
take you to the court-house some day, and there offer you at public 
sale. There will be and and (naming several noted 



60<S BEN HARDIN. 

negro traders who bought slaves in Kentucky for the southern mar- 
ket, and whom the negroes dreaded not one whit less than the devil 
himself), and they will come up and look at you, and feel your arms, 
and ask after your age and health, and what kind of work you can do. 
and you will tell them that you are at least twenty years older than 
you really are, and that you are sick half your time, and forty other 
lies." Thus Mr. Hardin proceeded to relate all the details of Bill's 
imaginary sale at public auction to the latter's utter discomfiture. Bill 
would, undoubtedly, have been reduced to the verge of despair, but 
in proportion as Mr. Hardin added horror to the picture, in that pro- 
portion was Bill convinced that his master intended nothing of the 
kind. In truth, Bill lived and died among Mr. Hardin's descendants, 
the yoke of bondage resting on him considerable less heavily than the 
freedom which war and revolution afterward brought him. 

On another occasion Mr. Hardin related a dream to his family, to 
the effect that he thought he had died and been buried; that six 
months afterward he had returned to Bardstown, gone to the court- 
house, and found court in session, and a will-case on trial. He soon 
discovered that the controversy was among his heirs-at-law over his 
own will, which was being contested because of mental incapacity in 
the testator. He named the counsel in the case, the members of the 
jury, and called over the witnesses, reciting the testimony of each, 
repeating, with great gusto, the statements of certain very ignorant 
witnesses who pronounced the testator of unsound mind. He 
omitted none of the details of the supposed trial, but the humor of 
the recital was rather too grim to be enjoyed by his anxious house- 
hold. 

On still another occasion he assembled his children and grand- 
children to listen to his will, which he caused to be read. In 
appointing his executors, he had not designated his son-in-law, Gov- 
ernor Helm, as one of them, of which the latter complained. From 
time to time, Governor Helm and Mr. Hardin had had their personal 
relations more or less disturbed by various occurrences. The latter 
was autocratic, the former independent. But the profound esteem 
and attachment each felt for the other soon pacified these transient 
differences. Possibly, a feeling of pique may have caused the 
omission in the will, but Governor Helm was chagrined and morti- 
fied, rather than offended. He felt that it would be construed as 
indicating a lack of confidence on Mr. Hardin's part in his integrity, 
which he knew was not his meaning. 



PREPARING I OK DEATH. OOo. 

He said nothing to Mr. Hardin himself, but when the matter w 
mentioned by another, Mr. Hardin said he was entirely willing to 
appoint Governor Helm one of his executors, but to do s<» would 
require a codicil, and he had ridiculed and denounced codicils so often 
in his speeches, that he could not, for a moment, think <>l adding 
one to his own will. He suggested, however, to one ol h i^ daugh- 
ters, who manifested anxiety about it, that if she would rewrite his 
will, she might insert Governor Helm's name as one of the execul 
This was accordingly done.* 

The long hours of suffering brought to his mind the importance of 
preparing for death. Always a believer in the Christian religion, and 
in the plan of salvation revealed in the Bible, yet, he had from time- 
to time postponed accepting its terms. He now resolved to do so no 
longer. He had not only studied the Bible, but had reflected on its 
great truths profoundly. He called, as a religious adviser on the 
occasion, Mr. McAllen, the pastor of the Methodist church in the 
town. Mr. McAllen was of great piety and zeal, but unwisely under- 
took to deal with Mr. Hardin as a " babe in Zion." 

He not only dwelt on the promises of the Gospel, but gave equal, 
or greater, prominence to the results that would follow their non-ac- 
ceptance. After one of his visits, Mr. Hardin remarked : ' That 
man means well, but it seems to me that he would accomplish more 
if he spent longer time talking of the love of the Saviour and less of 
hell -fire and the devil." 

At length, he professed that saving faith that brings "the peace 
that passeth understanding." He was received into the membership 
of the Methodist Episcopal church, South. At his request, a num 
ber of his most intimate friends were gathered in his own room, and. 
with them, he partook of the sacrament of the Lord's Supper. 

His frequent and earnest references afterward to his spiritual state, 
left no doubt of his abiding confidence that the grace and mercy 
shown to his fathers had been vouchsafed to him. His wife's tireless 
and hope-inspiring devotion induced him to believe for awhile that he 
might not only get abroad again, but be restored to health. II< 
far recovered as to be removed from his bed to an invalid chair, in 
which he spent a part of each day. He caused a vehicle to be made 
— so arrang-ed that he could comfortably ride in it and take the air. 
In anticipation of soon being able to move about unassisted, he pro- 
vided himself with crutches. 



*See Appendix, note K. 

39 



6 10 BEX HARDIN. 

But these hopes were of short duration. Fatigue and anxiety, at 
length overcame the faithful wife. She was seized with a congestive 
chill, and, while surviving its immediate effects, rapidly declined. 
On August 4th, she was known to be dying. Mr. Hardin had him- 
self carried to her bedside, and there he remained a dazed and broken- 
spirited watcher till the end came. 

After this event he abandoned all hope of life, and patiently waited 
for his hour to come. Shortly afterward, he was attacked similarly to 
his wife, and this, accompanied by his previous injury, and complicated 
with gastric irritation, rapidly sapped the citadel of life. At this 
period he was visited by his kinsman, Hon. Martin D. McHenry, who 
thus refers to it: 

" Hearing that he was so seriously afflicted, I went from my home 
at Shelbyville to see him. I found him rational, composed, self-pos- 
sessed, and spent the day by his bedside. He talked very freely to 
me about some business matters which he wished me to understand, 
and expressed himself satisfied that he should not recover, but that 
slowly and surely his end drew nigh. He was always an intelligent 
and firm believer in the scriptures and in the religion of Jesus Christ, 
and on the occasion of this, my last interview with him, he spoke of 
the subject seriously, and as such a man would on such an occasion. 
He told me he had been visited by the pastor of the Methodist church 
in the town, that he had conversed freely with him on the subject. 
He had subsequently sent for the same minister and communicated to 
him his faith and hope, and said he had requested him to enroll his 
name as having united with the church. In short, though he made 
no emotional professions, he had repented, believed, and trusted, and 
now believed he was a subject of divine grace." 

The members of his own family, who had died before him, had been 

buried in the cemetery at Bardstown. His father and mother rested 

in a burial place on the farm in Washington county, where they had 

first settled in the wilderness. It was the understanding in the family 

that Mr. Hardin had promised his mother to be buried by her side. 

As the end drew nigh he became solicitous for the fulfillment of this 
promise. 

The following incident illustrates his filial devotion as well as frame 
of mind in his last days : 

He called his children and grandchildren around his bed, and his 
daughter — Mrs. Riley — at his request read from the 47th chapter of 
Genesis, 29, 30, and 31. 



THE DYING HUMORIST. 6 I I 

"And the time drew nigh that Israel must die; and he called his 
son Joseph, and said unto him, if now I have found grace in thy 
sight put, I pray thee, thy hand under my thigh and deal kindly and 
truly with me; bury me not, I pray thee, in Egypt; but I will lie with 
my fathers, and thou shalt carry me out of Egypt and bury me in 
their burying place. And he said, I will do as thou hast said. And 
he said, swear unto me. And he sware unto him. And [srael bowed 
himself upon the bed's head." 

After the reading had ended, addressing those around him, in 
pathetic imitation of the patriarch, he said: " All of you lay your 
hands upon my thigh, and promise me that you will not bury me 
here, but will take my remains to Washington count} - , and there bury 
me by the side of my parents." Says Mrs. Riley, "We promised." 

After this, he patiently waited for that guest whose coming no 
longer had terror for him. The State, meantime, was agitated by a 
presidential campaign. Politicians traveled their usual stages, and 
stirred partisan feeling to its depths. The hosts he had led in polit 
ical conflict, were marshaled by other leaders, yet, he was not unob- 
servant of current events, nor lacking interest in their result. He was 
fond of hearing what was taking place and what the outlook por- 
tended. His sense of the comical also existed to the last hours of 
life, as the following incident illustrates: 

"A few days before his death," says General Preston, "in company 
with some friends, I called upon him. I found that lie had great anxiety 
about the state of the Whig party, of which he was a member. He was not 
a little distrustful of Mr. Fillmore, who was then enjoying the lasl term 
vouchsafed to a Whig president. He seemed perfectly tranquil, though in 
some pain, and insisted on knowing all the political news of the day. 
Several of his friends present, in sympathy with his condition, were wear- 
ing long countenances, when the topic came up of the appointment of 
Colonel Humphrey Marshall as minister to China. Mr. Hardin, assuming 
a very grave look, expressed his fears that it was .i fatal mistake on the part 
of Mr. Fillmore. Some one of the company inquired the reason why, 
Mr. Hardin replied, that many years before he had read the account <>f the 
English embassy of Lord Macartney to China, from which court he was 
sent away because he could not perform the kowtow, or court genuflexion : 
that it was true that for purposes of commerce, the emperor had allowed 
various hongs to the barbarian nations, and, among others, one each to 
England and America, but that the jurisdictional lines of these hongs were 
of remarkably limited extent; and that by the terms of the compai t. if any 
foreigner wandered beyond his proper hong, he was punished with greal 



6l2 • BEN HARDIN. 

torments, or decapitation. Mr. Hardin continued, that from what he could 
learn of the size of the United States hong, it was already too narrow for 
the accommodation of the Yankee merchants congregated there, and that if 
Colonel Marshall (who was of great corporal ponderosity), went into it, 
that he could not possibly perform the kowtow (as he was more than three 
feet in diameter), without causing the Yankee merchants to violate the juris- 
dictional line, which would lead to their arrest and execution, and this again 
to a sanguinary war between the United States and the Flowery Kingdom, 
which might bring the belligerents, before its termination, into hopeless 
ruin. He could forgive Mr. Fillmore many things, and did forgive him, 
but could never forgive him if he departed from the wisdom of Washing- 
ton, and involved us in such an unnecessary struggle when it was so easy for 
him to find a thinner embassador. 

"The seriousness of the dying humorist, during this narration, upset the 
gravity of his surrounding friends." 

Neighborly watchers at his bedside as time went on discussed poli- 
tics and the common-place events of life in respectful undertone. The 
weary September days slowly wore away, scattering autumnal tints over 
field and forest. That persistent insect minstrelsy in the grass and 
trees on the lawn, that had monotonously broken the silence of the 
summer nights, floated into the sick room more faintly, as the singers 
sang their last requiem. 

The sounds of life came less distinctly to the ear of the sufferer. 
His faculties became mercifully benumbed as the hour for their over- 
throw approached. He talked very little, yet, what he did say was 
not only rational, but showed that his thoughts were less of this 
world than of that better one, for which he hoped and waited. A 
day or so before his death, he called a little grandson to his bedside, 
and, laying his hand upon his head, said: "Jacob blessed his sons, 
and why shall I not bless you? I bless you, my son, and may God 
Almighty bless you." 

"One night," says Mrs. Riley, "as he lay so quietly as to render 
it doubtful whether he was awake or slept, I asked him if he desired 
anything. 'No,' he replied, 'no — nothing but glory, and I have 
that.'" 

On Friday, September 24, 1852, rational and conscious to the last, 
surrounded by children, grandchildren, and friends, he peacefully and 
quietly fell into that sleep that knows no earthly waking. Thus this 
man of bright humor, this skillful lawyer, powerful orator, and wise 
statesman, at the end of his long career, met death in the meek and 
trusting fashion befitting a descendant of the exiled Huguenots. 



DIGNITY OF DEATH BEFORE DE( AY. 

It is often said of those who die before age or disease hav< abat 
the natural powers of body or mind that death is untimely. It could 
be said of Mr. Hardin, at least, that his mental force had shown no 
of decay or diminution. He fell as falls the strong warrior in tin- full 
tide of victorious battle. There was no decrepit interval betwe< n the 
end of his career and the end of his life. Is it not a blessed in 
to go thus suddenly down to death, rather than linger a dotard on the 
margin of life, and by the infirmities of a common humanity blur the 
picture of one's strength and genius? " May it phase the Giv< 
all good," said John Ouincy Adams, "to guard me from the disgrace 
of dishonoring my last days by loitering too long upon the stage." 
"There is a certain dignity," says Henry Mackenzie, "in retiring 
from life at a time when the infirmities of age have not sapped our 
faculties." f It adds a charm to the story of Him who was God man 
ifest in the flesh that, judged by mortal standards, He passed from 
earth in the full perfection of all intellectual and physical powers, and to 
the devotee to-day that glorified face looks down with its manly beauty 
all unchanged after the lapse of eighteen centuries. Reverently, be it 
said, that it is fortunate for Mr. Hardin's memory that his intellectual 
manhood never fell into ruin, but while still shining in meridian splen- 
dor was suddenly and irrevocably eclipsed by the shadow of death. 
Thus ending life is, indeed, not dying — it is spiritual translation. The 
soul is only a tenant changing houses. 

"Then steal away, give Little warning, 

Choose thine own time ; 

Say not 'good night,' but in some brighter clime, 
Bid me ' good morning.' ' 

* Memoirs, Vol. IX., page 187. t T he Man of Feeling, page 184. 



614 BEN HARDIN. 



CHAPTER XLI 



CONCLUSION. 



SOME religionists believe and teach that the good of the soul after 
death requires that the body rest in consecrated ground. Our 
English and Scotch ancestors buried their dead in the church-yards of 
their respective parishes. A similar custom prevailed in some of the 
American colonies, which has not been interrupted by the great 
changes on this continent since transpiring. The Protestant, no less 
than the Catholic, believed — and very largely still believe — that 
Christian burial can only be found in places expressly consecrated by 
rites and ceremonies, or hallowed by the dust of kindred and loved 
ones. 

The pioneers of Kentucky, and the South and West — meeting 
death untimely on the battle-field — from foes in ambuscade or other 
frontier peril, or in their beds in their rude and scattered homes, 
"when their appointed time came," were content to be laid anywhere 
beneath the sod. Public cemeteries were rare, and practically inac- 
cessible. Churches and their appendant burial places were widely 
scattered; and so, in default of any other, the early settler selected a 
spot on his own lands, near his dwelling, which was set apart as a 
"grave-yard." As members of his family died, they were laid there. 
It was a soothing thought to the parting spirit that the mortal body 
would lie in close association with those loved in life. It mitigated 
the silence, desolation, and gloom of the grave, to reflect that near 
by slept a father, a brother, or a child — and not far away were the 
sights and sounds of the old home ! The silent sunbeam of the 
morning first kissed those green mounds in its swift flight to the door 
ajar in "mother's room," and at evening, the gentle zephyr, straying 
wearily from the west, crept down in the ivy and whispered lullabies 
to the dead. A recent author, thus refers to this American custom 
of private burial places: "In the scattered population of Virginia, 
churchyard burial became impossible. In its place, grew up the habit 
of interring the dead beside the homestead. This ground, conse- 
crated by the dust of the family, was the last possession parted with; 
indeed, it almost always remained in the possession of the kindred to 



THE KENTUCKIAN'S MM II I All. 

the farthest generation. So it came about that for a decent man to 
own no acres that might receive his dust was something that appealed 

strongly to his fellows. It is a social instinct, peculiar to the South- 
ern States of this Union." :: 

Somewhat uncared for, and sometimes forgotten, are the duelling 
places of these silent families whom death has not divided. But they 
will need neither obelisk nor epitaph to commemorate their nam< 9 
with a worthy posterity. 

On the farm, in Washington county, where Mr. Hardin's parents 
had settled on coming to Kentucky, in 1788, their bodies had long 
been laid to rest. Others of his family, dying before him, had been 
interred in the public cemetery at Bardstown, Mrs. Hardin being the 
last. By the side of his parents, in a spot marked by ev< 
trees (and, of late, by some intrusive locusts, in addition 1. in an old and 
neglected field, near the public road from Springfield to Lebanon, a few 
miles from the former, stands a stone, bearing as its sole inscription : 
"Ben Hardin, of Bardstown." There his dust now repos The 

memorial stones he had erected to his wife and his children, had been 
marked with their names only. His own monument was so inscribed, 
in accordance with his known wishes and simple tastes. Nothing 
could have been more repugnant to him than an ill-devised epitaph, 
or a pretentious and insincere posthumous eulogy. 

"Some years after his death,"' writes Mrs. Rile}-, "a committee of 
o-entlemen waited on mv husband, to obtain mv consent to the 
removal of his body to the cemetery at Frankfort, where it was pro- 
posed to erect a monument to his memory. I related the circum- 
stance of the promise, and this ended the matter, "f 

In Westminster Abbey, for several centuries past, England lias 
garnered the dust of her great and famous children, until something 
of the atmosphere of genius and glory hovers about "the solid pil- 
lars, the ponderous arches, the huge edifice with triple tower and 
sculptured stones, and storied windows." J Kentucky has no "W 
minster Abbey, but, instead, has buried a goodly host of pion< 
soldiers, statesmen, and scholars in her cemetery at Frankfort, the 
State capital. The cemetery is situated on a slightly undulating 
plateau, on Kentucky river, where the shore springs abruptly several 
hundred feet above its limpid waters. If the field of Macpelah, 
which Abraham bought for a burying-place. was anything like it. the 
anxiety of Jacob not to be buried in the sands or catacombs of Egypt 

* Kentucky— a Pioneer Commonwealth, by Professor X. S. Shaler, Chapter XL. 

% Dean Stanley. 



6i6 



BEX HARDIN. 



was, no doubt, heightened by recalling the soul-comforting peace 
that lingered around the tomb of his fathers. Overlooking the 
river and the little city below, and in view of picturesque hills beyond 
(not unlike those bordering the valley of Hebron), yet these sights 
seem far away, and the blue heaven above, somewhat closer by ! 
From Boone, the pioneer, to Hart, the sculptor, is a long and illus- 
trious roll of Kentuckians that will be called among men until the 
Anglo-Saxon race and all it has achieved — like prehistoric man — shall 
be blotted from the chronicles of time. 




mm^*^ 



Boone's Grave. 



APPENDIX. 






APPENDIX. 



NOTE A, PAGE 4 



GRANT FROM LORD FAIRFAX TO MARTIN' HARDIN IN 174 

(NOTE I. ) 

The Right Honorable Thomas Lord Fairfax, Baron of Cameron, in that part of 
Great Britain called Scotland, Proprietor of the Northern Necl f Virginia: To all to 
whom this present Writing shall came, Lends Greeting. Know Ye that l"i .uise- 

for and in Consideration of the Composition to the paid and for the annual Rent ' 
after reserved, I have given, granted, and confirmed, And by these presents for nit-, my 
Heirs and Assigns, do Give, Grant, and Confirm unto Martin Hardin, of the Couti 
Prince William, a certain Tract of Waste and ungranted Land, lying in theGn i 
of the Rappahannock River, Orange County, and is Bounded according to a Survey 
thereof made by Mr. George Hume, as followeth : Beginning at a large Hickory and 
Red Oak Corner in a Line of Colonel Francis Thornton, and runs thence with the said 
Thornton's Lines So. 27 , Wt. twenty-eight poles, to one red Oak and Hickory, So. 15 , 
Et. Forty-two Poles, to a Poplar, So. 48 , Ft. Sixty-four Poles to a Red Oak, So. 76 , 
Et. Forty Poles to two Spanish Oaks, So. 32 , Et. Fifty Poles to one Hickory, one white 
Oak, and a red Oak Corner to the said Thornton's; thence leaving his line S i. 8 . I • 
Thirty-six Poles to one Hickory and three white Oaks in the line of another Tri 
the said Thornton's, thence with the said Thornton's line So. 40 , Wt. Two Hundred 
Poles to one Hickory and two white Oaks Corner to the said Thornton and William 
Green, thence with the said Green's Line No. 70 , Wt. Sixty Pole- to Two White ' 
and one red Oak Corner to the said Green and John Weatherhall, thence with the said 
Weatherhall line No. 40 , Wt. Three Hundred Poles to one red Oak. on a Ridge, thence 
North Sixty-two Poles to a Chestnut, Oak, and Hickory, at the foot of a Mountain ; 
thence over the said Mountain East Two hundred and thirty-four Pole- to the Begin- 
ning, containing Four hundred acres Together with all Rights, Members, and Appur- 
tenances thereunto belonging, Royal Mines excepted, and a full third part of all Lead. 
Copper, Lime, Coals, Iron Mines, and Iron Ore that shall be found thereon : T 
and to hold the same Four hundred acres of Land, Together with all Rights, 
and Benefits to the same belonging or in anywise appurtaining, Except befi 1 I 
To Him, the said Martin Hardin, his heirs and assigns for Ever. He, 'he said 
Hardin, his heirs and assigns, therefor, Yielding and Paying to Me, >"% Heii 
and Assigns or to my certain attorney or attorneys, agent or agents, or to 
certain attorney or attorneys of my Heirs or Assign-, Proprietors "1" the Northen 
Neck, Yearly and every Year on the Feast Day of Si. Michael, the Archangel, the 
Fee Rent of One Shilling Sterling Money for every Fifty acres of Land hereby ('.ranted, 
and So proportionably for a Greater or Lesser Quantity. Provided that if the -aid Mir- 

* Transcribed from the original in possession of H W Bru 



6l8 BEN HARDIN. 

tin Hardin, his Heirs or Assigns, shall not Pay the before reserved annual Rent, So that 
the same or any Part thereof shall be behind or unpaid by the Space of Two whole 
Years, after the same shall become Due, if Lawfully Demanded. That then it shall 
and may be lawful for Me, my Heirs and Assigns, Proprietors as aforesaid, My or their 
certain attorney or attorneys, agent or agents, into the above Granted Premises to Reen- 
ter and Hold the same, so as if this Grant had never Pass'd. Given at my office, in the 
County of Fairfax, within my said Proprietary, under my Hand and Seal. Dated this 
twentieth day of June, in the Twenty-second Year of the Reign of our Sovereign Lord 
George, the second by the Grace of God of Great Britain, France, and Ireland, King, 
Defender of the Faith, the A. D. one thousand seven hundred and forty-eight. 

FAIRFAX. 
Registered in the Proprietor's Office, in Book G, Fol. 70. 



< 

! 



SOME SCOTCH HARDINS. 

(NOTE II.) 

The name of Hardin was known in Scotland from an early period. An ancestor of 
Sir Walter Scott was known in border story as Auld Wat of Hardin. Auld Wat's son 
William, captured by Sir Gideon Murray of Elibank during a raid of the Scotts on 
Sir Gideon's lands, was, as tradition says, given his choice between being hanged on Sir 
Gideon's private gallows, and marrying the ugliest of Sir Gideon's three ugly daughters, 
Meikle-mouthed Meg, reputed as carrying off the prize of ugliness among the women 
of four counties. Sir William was a handsome man. He took three days to consider 
the alternative proposed to him, but chose life with the large-mouthed lady in the end, 
and found her, according to the tradition, which the poet, her descendant, has trans- 
mitted, an excellent wife, with a fine talent for pickling the beef which her husband 
stole from the herds of his foes. Meikle-mouthed Meg transmitted a distinct trace of 
her large mouth to all her descendants — Sir Walter, among others, thus betraying his 
pedigree.* 

From this marriage sprang sons, who, by inexplicable coincidence, bore the names 
of John Hardin, Mark Hardin, and Ben Hardin. The reader will note that these are 
family names among the Hardins of Virginia and Kentucky. 



NOTE B, PAGE 108. 



PREAMBLE, WRITTEN BY HON. JOHN ROWAN IN SUPPORT OF THE 
CONSTITUTIONALITY OF THE RELIEF LAWS. 

The late decision of the Court of Appeals, pronounced in the cases of Blair vs. 
Williams, and Lapsley vs. Brashear, having been referred to in the communication of the 
governor, demands the attention of the Legislature. In that decision, the existing 
remedial laws of the State are declared to be unconstitutional and void, in relation to 
all contracts made anterior to their enaction. The principle which it establishes, 
whether viewed in relation to its practical effects upon society, in its present embar- 
rassed condition, or in relation to the exercise of legitimate power by the departments, 

* Biography of Sir Walter Scott, by Richard H. Hatton. 



APPENDIX. 

according to its distribution and apportionment, in the Constitution of the 
entitled to such calm and vigilant scrutiny of the Legislature, and if, upon thai < rutiny, 
those laws should he found to have been enacted, in contravention "I any provision "f 
either the Constitution of the State, or that of the United States, they should lie forth* 
with repealed, and their place supplied by valid enactions. Bui if, on the contrary, 
they should be found to be not in connection with any restraint imposed upon legislative 
power, by either of the constitutions, and it should appear that the judges, in proclaim- 
ing them void, have transcended the limits assigned by the constitution t" thi 
of judicial power, they should be informed of that fact, and admonished ih.n their 
decision does not, as it ought not to, vacate those laws. Theii com urrence 
by the constitution, necessary to their enaction. Their veto can not vacate them ; and 
they themselves have declared, in the case of Banks \s. Odin, tli.it, while they would 
feel it their duty to pronounce any act of the Legislature void, which was manifestly in 
confliction with the constitution, they feel a strong disinclination t" encroach upon the 
province of the Legislature, by attempting to narrow its sphere of action, mi thwart its 
will. They can not do it by construction or intendment. The confliction of the law 
with the constitution must be obvious and palpable to induce them to make such decla- 
ration. (See I Marshall, 551.) There is, therefore, high authority against the arrival, 
by construction, at the conclusion that a law is unconstitutional. The impuhu 
charity and the dictates of reason, alike proclaim that the judges, when they entertain 
doubts as to the constitutionality of a law, should presume 1l1.1t those who enacted it 
were not less obliged than themselves to preserve the constitution inviolate, and should 
give effect to the law. All the judges concur in the opinion that the existing remedial 
laws are void, in relation to contracts which were in existence at the time of their < 
tion — one of them declares all laws to be void which authorize replevins, or sales on 
credit, in any case whatever. Each supports his opinion by his construction of the 
tenth section of the first article of the Constitution of the United States, which, in the 
latter clause of it, provides "that no State shall pass any law impairing the obligation 
of contracts." 

It will, perhaps, subserve the purposes of this inquiry into the correctness of the 
decision, and accord better with correct notions of fitness, that it should he confined 
mainly to the reasoning of the chief-justice, as he is the official organ "f that court. 
He inquires, first, what it is that constitutes the obligation of a contract? and. second, 
does the act of assembly impair that obligation? The act alluded to is that which 
allows a replevin of two years, when the endorsement that notes on the hank of the 
State, or Commonwealth, will be taken, is not made. In answer to the first question, 
he asserts, with the writers upon ethics, and the law of nature and nations, that obliga- 
tions are, according to natural law, perfect or imperfect ; and, with them, asserts that 
the obligation to gratitude and benevolence is of the imperfect sort, and invests the 
person who claims the performance of its duties, with no right to exact it by force : that 
the performance of obligations of the perfect sort, may be exacted by violence, on the 
part of the person to whom the obligation is incurred : that in civil society, the reme- 
dies afforded by the laws, are in substitution of the violence, which might, according to 
natural law, have been used for the enforcement of obligations of the perfect sort ; and 
that, therefore, the obligation of a contract consists, alone, in the remedy afforded by 
the laws for its enforcement; or, in his own language, "the legal obligation ,,f the 
contract, evidently consists in the remedy alone. Tt can consist in nothing el-c. for if 
the remedy is withheld or taken away, the •ontract has no legal obligation." 

He illustrates his position by the effect which the statute of frauds and perjuries and 
the statute of limitations "nave upon the cases of contract, to which they apply; and 



62Q HEX HARDIN. 

asserts that the statutory denial of remedy to those cases, leaves them without any legal 
obligation. He instances, also, the case of simple contract without consideration, upon 
which, at common law, no action will lie. In further illustration of his doctrine, he 
refers, also, to Evan's Pothier, part 2, chapter I, as authority in its support. 

The doctrine and the cases cited, and referred to for its illustration and support 
remain to he examined. The doctrine of the chief-justice, in relation to perfect obli- 
gations, and the right of enforcing them by violence, in a state of nature, according to 
natural law, is admitted to be correct, as is also his doctrine in relation to imperfect 
obligations. But it is insisted that in the transition from a state of nature to the 
state of civil society, the obligatory force of moral obligations of the perfect sort is not 
canceled or annulled — on the contrary, the laws of nature, so far as they relate to moral 
obligations of that character, are incorporated in the municipal code by the social com- 
pact, ratified and enforced by the laws of society, as the best rules of action in social 
intercourse. Indeed, they could not be annulled by society. They were enacted by 
the great Law-giver of the universe, not for the temporary use of man while in a state 
of nature, but for the regulation of his conduct, in every state of association of which 
he is capable. They form a part of his moral sense, are identified with it, and have the 
sanction of that reason with which he was endowed by his beneficent Creator, as the 
rule of his conduct and his guide to happiness. His social propensities unite with his 
reason, in proclaiming the obligatory force of the laws of nature, of the obligations 
which they impose, and their irrevocable character. The laws of civil society, so far as 
they constitute the rules of right, are no other than laws of nature more explicitly 
defined, and suited, in their re-enaction, to the condition of the people who compose 
the society. Human laws, says Blackstone, are declaratory of the laws of nature. 

Law, whether natural or municipal, is a rule of action, and its very existence 
implies the obligation, on the part of those on whom it is imposed as a rule, to conform 
to it. The obligation, which is denominated legal, results from and is imposed by the 
laws of civil society. But the laws of civil society are but declaratory of the laws of 
nature ; therefore, the obligation which results from the laws of nature, results also from 
the laws of civil society. When considered as resulting from the former, it is binding 
only in conscience, and is denominated a moral obligation ; but when considered a 
resulting from the latter, it is denominated a legal obligation, and is externally binding. 

The purpose for which civil society is formed is the general security and the gen- 
eral interest of the whole and its several parts. Every man, therefore, by consenting 
to make himself a member of civil society, agrees, tacitly or expressly, that these pur- 
poses shall be carried on, and that he will concur in carrying them on, by such meas- 
ures as the common sense and understanding of society shall approve of and prescribe. 
Thus far, he is engaged only in a compact, which obliges him, by means of his own 
immediate consent, without which he would be no party to it, nor be in any way con- 
cerned in its obligation. By this compact he gives society a legislative power over him , 
that is, he gives it a right to prescribe such rules for his conduct as the common under- 
standing of society shall judge to be necessary, or conducive, to the general good. 
And, consequently, by the same compact, he obliges himself to observe these ruie- 
when they are so prescribed. Those rules of right, and of conduct, comprising the 
laws of nature, sanctioned by the compact, and proclaimed either by the re-enaction of 
them by society, or by their adoption by immemorial usage, become in society the rules 
of external obligation as to all the individual and social duties of man in a state of 
civil society, and are obligatory upon all its members. 

The right which individuals possessed in a state of nature, to enforce the perform- 
ance of obligations of a perfect sort, having, by their entering into the social compact, 



APPENDIX. 

been surrendered to civil society, constitutes its executive power, and is, unle 

wise disposed of by fundamental law, regulated by legislative prescriptions. It maybe 

denominated the force of civil society, ami is mediately or immediately under the ■ 
tion of its understanding. The discretion which in a state of Datun 
with the power exercised by individuals in the enforcement of perfect obligations, hav- 
ing been surrendered by the compact, with (hat power, in civil society, < 'institutes the 
general understanding of the society, and is denominated its legislative power ; and, :i-. 
in a state of nature, it presided over and directed the exertion "f individual p 
in civil society it presides over and regulates executive power. The sovereign powei 
of civil society is, by many jurists, divided into legislative and executive. The p 
which others denominate judicial, is by them assigned to the executive department. 
The civil power of the State of Kentucky has, by its charter, been assigned to three 
distinct bodies of magistracy: the legislative to one, the judicial to another, ami the 
executive to a third. Neither is to exercise the power properly belonging to the other. 
The legislative in Kentucky, as in all civil societies where it exists, is the ascendant 
power. It is limited only by the restraints upon its exercise, which arc to be found in 
the Constitution. By that instrument, it is constituted a check upon the other depart- 
ments — they are amenable to the Legislature, and the members of the Legislature are 
amenable to the people, the legitimate source of" sovereign power; heme, the right of 
the Legislature to inquire into the decision which purports to vacate legislative ei 
ments, and to secure the legislative province from invasion from that quarter. 

If the sentiment be correct, that the laws of nature are not repealed or vacated by 
the social compact, but recognized and more explicitly defined and promulgated in a 
state of civil society than they were in a state of nature; and if it be true, thai law- 
imposes on those to whom it is prescribed the obligation of conforming to it, then it 
would seem to follow that the obligation of a contract between two persons in a 
state of nature, is deducible rather from that law of nature which proclaims 
to man the necessity of complying with his just contracts, than from the right, 
which by the same law of nature, the other party to the contract has to exact by 
force a compliance with it. The obligatory force of the law upon the contract- 
ing parties, results from their freedom of agency — from their having, a- free 
agents, deliberately assented to the contract— and from the necessary influence "f voli- 
tion upon the destiny of free agents. Besides, that man should be bound by tin 
tract to which he has freely assented, is, even in a state of nature, necessary to the 
enjoyment of that social intercourse for which he was evidently formed, and of that 
happiness for which his organic conformation and intellectual endowment- so eminently 
qualify him. His perfect obligation, therefore, to comply with such a contract may 
surely be more fairly inferred from these considerations than from the consideration that 
a compliance with it might be exacted by the use of violence. Again, the right to use 
violence for its enforcement is obviously correlative to the obligation and presupposes it- 
existence, for if there did not exist a perfect obligation, there could exi-t no right to 
exert violence (as in the case of the imperfect obligations of benevolence and -lati- 
tude). There would be nothing on which to predicate the right to use it. Theme, il 
would seem obvious that the right to use violence to enforce a perfect obligation, -lid 
not, even in a state of nature, constitute that obligation, but resulted from it in it- 
existing state. 

Let a case illustrate the doctrine. B, a hunter, is about to commence an expedition 
in pursuit of game. C, a trapper, has furs on hand which he is willing to ex. ban 
skins. B needs the furs: they are necessary to his comfort -luring the expedition which 
he contemplates, but he is not in possession of the -kms required by C in exchange for 



622 BEN HARDIN. 

them. C lets him have the furs upon a contract that they are to be paid for in skins 
when he returns from the contemplated expedition, in which he expects to take them. 
B returns from his hunting expedition, has been unfortunate, and is unable to pay the 
skins — the time for their payment has expired. The obligation to pay them is of the 
perfect sort. C has a right to exact reparation by violence. Does the right of C to use 
this violence constitute the obligation of B's contract ? Or, does it result from the vio- 
lation of the obligation of his contract? Most evidently from the latter. 

Again, although C has a right to exact reparation by violence, is he bound to do it 
instantly ? May he not, if he please, indulge B until he makes another hunting expedi- 
tion, and, if he should not be successful in that, another and another, until the skins 
can be obtained ? And can his doing so be forbidden, either by reason or the charities 
of the human heart — would it not, on the contrary, have the sanction of both? Let it 
be supposed that a contract analogous to the one just stated, has been entered into 
between two members of civil society. The obligation of the contract would not be 
less valid in the civil than in the natural state. But the right which the obligee had by 
the law of nature to exact performance, or reparation for non-performance, by violent 
means, or to extend indulgence at his discretion, belongs by the social compact to the 
civil society, of which he and the obligor are members. The understanding and the 
force of civil society, which constitutes its legislative, judicial, and executive power, is 
composed solely of this right of indulging, or of exacting by instant force the perform- 
ance of the perfect duties which existed among men in'a state of nature, but which they 
surrendered when they became members of civil society. 

In the case put between B and C, it can not be asserted that it was incompetent for 
the latter to indulge the former. It must be admitted that it was even reasonable and 
prudent in him to do so — and if it was not only competent, but reasonable and discreet 
in him to forbear force and extend indulgence, can it be contended that civil society, 
whose legislative and executive remedial power consists of the very faculties which were 
competently, and, with approbation, exercised in the former case, can not exercise it in 
the latter. 

Let it not be forgotten that the violence which the obligee may, by the law of 
nature, exert to enforce a contract, is discretionary with him. He may exact it at any 
time, or in any manner (not forbidden by the same law), his judgment and discretion 
may dictate, upon a deliberate view of the condition of his debtor, of the efforts he 
has used, and the means he possesses of making payment. And is the understanding 
of civil society less to be confided in, as regards the exertion of its force in obtaining 
the performance of contracts, or reparation for their infraction, than that of individuals 
in a state of nature? If so, civil society should dissolve itself, and revert to a state of 
nature. The social compact implies an obligation on the part of the sovereign to pro- 
vide for the administration of justice by remedial enactions. But as all and each of the 
members of civil society are equally interested in its well-being and prosperity, each 
stands obliged to claim only that justice in his case which may be afforded by the 
sovereign, compatibly with the justice, which is due to each and all the other members 
of the community. Justice, therefore, is not, and can not justly be administered in 
any particular case without due regard to the condition of society, and the infinitely 
ramified relations inseparately connected with it, and the just claims which result from 
those relations. Civil society, however numerous its members may be, must, in the 
administration of justice, or, which is the same thing, in the enaction of remedial laws, 
be considered a homogeneous mass, and nothing can be justly done in relation to any 
part which inflicts injustice upon the whole. That contracts should be made, and 
credit extended, is according to the law of nature. The only dowry with which 



APPENDIX. 






heaven ushers mortals into existence, is their intellectual and muscular power . i 
are bestowed in association with the mandate that they arc to be exerted i 
with the lawsof nature, or the lawsof society, which are the same, in achie 
essary to human comfort, and conducive to social happiness. Each individual, to obtain 
subsistence, must anticipate his energies. He has no properly ; he has only the 
acquiring it by the sweat of his face, a denunciation not less plainly written in the 
volume of nature than in the volume of revelation. He needs clothing and victuals' 
he must obtain them upon credit or perish, but it would have been idle to have ere 
him just that he might perish in the dawn of existence. Such a motive can not, without 
sacrilege, be ascribed to the Great Supreme. Credit is, the inctioned by the 

laws of nature, and, of course, by the laws of civil society. But credit is, n 
essential to enterprise, and enterprise is essential to prosperity, individual and social. 

Now to prove that the Legislature in its remedial enaction-, should regard the rela- 
tion sustained by the individual litigants to the other members of society, and the inter- 
ests, prosperity, and happiness of the whole in connection with both, the following 
case is put: B, an enterprising citizen, has, by his industry and skill, acquired prop- 
erty of the value of $5,000; in the view still to increa-e his fortune and improve his 
condition, he obtains credit with C, D, E, F, and G, and becomes indebted to 
$500; he is about to engage in a laudable enterprise, which promises flattering results, 
with which he makes them respectively acquainted; he hazards in the enterprise but 
half his fortune, reserving the other half as a reasonable competence for the sustenance 
of his wife and children, in the event that his enterprise fails; a sudden change takes 
place in the condition of society, or his vessel sinks in the storm, whereby the $2,300 
and his anticipated profits upon it are lost; a sudden diminution or influx of the circu- 
lating medium takes place. He is unable to pay his five creditors, the time for pay- 
ment has elapsed; C, the first of them, is about to commence suit for hi- $500. B I 
the remaining half of his fortune will not, at an instant forced sale, pay more than the 
amount of C's debt — such is the changed condition of society and of things. Hut if 
time were afforded him, he could, by his industry, enterprise, and skill, be enabli 
pay each of the five the amount due him, and have a little residuum for the suppi 
his wife and children. His case is but a sample of the general condition of society. 
The change of things has effected all, or, at least, a great majority of the community, in 
something like the same way. What should be done? Ought not civil society 
change the remedial system as to suit it to the changed condition of society ? or ought 
the existing system, which had in its enaction been suited to the most happy and ; 
perous state of things, to be retained, as the instrument of ruin ami oppression — as the 
instrument, in the case put, of fraud upon the remaining four creditor- of B, and of his 
entire ruin? Would the four creditors, in a state of nature, have permitted C to -wal- 
low up the total of B's property, in the payment of hi- debt, and leave them unpaid, 
and without the hope of ever being paid — ought they to have done it? They would 
not, they ought not. They would have constrained C to unite with them in indul 
B to an extent that would have saved all their debts, and left him under the cheering 
influence of hope; and what they would not, and ought not to do. ought civil 
society to do? 

Montesquieu lays it down as political orthodoxy, " that laws should be relative to the 
nature and principle of the government — that they should be relative to the dim.' 
each country, to the quality of its soil, to its situation and extent, to the manner of liv- 
ing of the inhabitants; they should have a relation to the degree of liberty which the 
Constitution will bear — to their inclinations, riches, numbers, commerce, manners, and 
customs," etc. The foregoing are laid down as the great principles of judicious ' 



624 BEN HARDIN. 

latinii ; they are illustrated and established throughout his " Spirit of Laws,'' a work 
which, by rescuing the science of government from the obscurity in which ignorance 
and superstition had involved it, conferred immortality upon its author. The principle 
of a republic is virtue, of a monarchy is honor, and of despotism is fear. Strange, that 
in a republic the appellate court should have selected fear, the principle of despotism, 
as the motive to duty. But if the new doctrine be correct, the legislative power can 
not be exerted in the enaction of laws, relatively or suitable to the condition of society : 
civil society must enjoy an exemption from the vicissitudes to which the destinies have 
subjected the affairs of individuals, and of empires, or, it must submit to the unmiti- 
gated rigor of those vicissitudes. Its condition in peace and war, in plenty and scarcity, 
'health and disease, must remain the same. If the plague, the leprosy, or the small- 
pox were to visit society, no law could be passed providing for the segregation of the 
unhappy sufferers — it would be in violation, it may be supposed, of the obligation of 
the social compact. It would, at least, be an alteration of the existing laws in relation 
to social intercourse — the remedial system must remain the same, or it must, in the prog- 
ress of its duration, be involved in inextricable perplexity, for it can only be altered 
prospectively. 

But such has not been the understanding or practice of men, either in a state of nature 
or of civil society. The polished member of civilized and refined society is, and must, 
according to human destiny, be alike ignorant of future events, with the rude, untu- 
tored child of nature. The latter takes shelter in the nearest cave from the impending 
storm ; nor is he at all conscious that his obligation to escape the storm consisted in 
the shelter afforded by the cave from its ravages. But he is very conscious that if he 
were to intermit his pursuits and remain in the cave during the calm which succeeds the 
storm, in the view to be availed of the same remedy against the like evil, that he would 
have to expiate his folly in doing so, by his wants and his sufferings. Nor will he have 
lived long before he will have learned that, although the seasons and their order of suc- 
cession are fixed by fundamental law, yet that the weather in each is changeable and 
capricious ; and that though he may predicate the plans of his life upon the fixed and 
stable succession of the seasons, yet his labor must be often intermitted and his plans 
thwarted by the irregular changes of the weather in each season, which, not being able 
to foresee, he could not guard against. He will learn from the volume of nature what 
the Christian learns from that of inspiration — that the wind bloweth where it listeth, 
and that whence it cometh, or whither it goeth, no man knows. He will learn, also, 
that clouds and storms of a desolating character, are often associated with its current ; 
and he will find that the happiness at which he aims, will be promoted not less by its 
exertions to mitigate the effects of adverse and unforeseen occurrences than by any efforts 
he could use of a preventive or cautionary sort ; all this will be learned alike by the 
member of civil society as by the child of nature— experience will have taught both ; 
and the member of society will get to know that the adverse occurrences to which he is 
liable in the civil state, are not better guarded against by the fundamental law of the 
civil constitution, than are the irregularities and caprices of the weather, by the stabil- 
ity of the seasons ; and that refuge is to be found alone in the wise exercise of that reme- 
dial power, accorded in the Constitution to the Legislature. 

What is human life but an irregular series of remedial efforts enjoined upon mortals, 
by the resistless propensity of their nature, to ameliorate their condition, and does not 
reason sanction these efforts? 

But why, it may be asked, were not the States, upon the formation of the Constitu- 
tion of the United States, melted down, and their existence abolished, if the doctrine 
be correct that they can not suit their remedial system by varying it to the varied 



APPENDIX. 

conditions of society? If one unaltered, and unalterable, system of laws wa 
to regulate in perpetuity the concerns of the people of the republics of \m • 
the people of the State of Maine and of Georgia, and all the intermediate St.,: . 
ever different in manners, customs, pursuits, and inclinations, inhabiting diffi 
soils, and influenced by different climates, could flourish and prosper undet the same 
unvaried remedial system, why the afflicting expense of sustaining twenty-foui different 
States, with the legislative, judicial, and executive machinery of sovereignty? Why, 
under this hypothesis, are they taunted with the mock lineaments, contexture, 
aspect of sovereigns, when, in very deed, they are dwarf vassals? Are the prim iples 
laid down by Montesquieu vapid and illusory, and were the patriots, who achieved the 
independence of the American States, and formed their respective constitutions and 
that of the United States, deluded into the erroneous belief that those principles 
were correct, and had been verified by the experience of past ages 
they mistaken when they believed that heaven had not assigned geographical limits 
to the potential extent of republican government? That all attempts, therefore, at its 
extension have been abortive only because, in its spread, it has not carried with its 
expansion the power and machinery of local legislation? And were the State consti- 
tutions formed, and the power of local legislation reserved in them, to the respective 
States, in the same mistaken views? And was it reserved for the judges to pi 
and proclaim the error? To ascertain that the' great rules of right consist alone in 
the remedy, that the only obligation of a contract consists alone in the power to 
enforce it, which existed at the time it was made? To proclaim and enforce a doctrine 
which unnerves the legislative arm, paralyzes its power, and throws it into a Stat 
helpless inaction — of chemical fixation? It is not unfair when a doctrine so novel, and 
so extensively operative, is about to be propagated, to dwell a little upon its probable 
political effects. 

The governments of the United States and of the States are. it must be acknowl- 
edged, dependent for their existence and duration upon the will of the good people 
who compose them — this dependence is settled by fundamental law. In each Constitu- 
tion the people have reserved to themselves, as an indefeasible right, the power to alter, 
amend, and abolish the form of government thereby established. The will of men is 
very much influenced by their feelings and their affections — their affections and their 
feelings have much to do in the formation of their opinions. The strength of these 
governments happily depends, not upon any system of physical force, contrived for their 
invigoration, but depends upon, and consists in, the affections and will of the people who 
compose them — the right of suffrage throughout the States, with but fewexceptiot 
as it ought to be, unqualified ; consists alone in the unhampered exercise of matured 
discretion. Can it, therefore, accord with correct political principles to diminish, or to 
alienate, the affections of the people from their government, by demanding of them 
"brick and denying them straw?" Are not the affections of the people the anclv 
of the government ? Let it not be forgotten that the affections of a people will always 
be found flowing in the channels of their interest. 

Let this argument be illustrated by example. The staple of the State of Louisiana 
is sugar; that of the State of Mississippi, cotton; that of Ohio. Hour, and of Virginia, 
tobacco. It has been already stated that credit is necessary to individual and - I 
prosperity — that man, to advance and prosper, must anticipate his energies, whicl 
only be clone by the exercise of that confidence which is essential to social inten urs.>. 
The sugar-planters in Louisiana, the cotton-growers in Mississippi, the farmet 
and the planters in Virginia may, in every year, anticipate their crops n i ly — 

anticipation to that extent is not only allowable, but justifiable. Each confides in the 

40 



626 BEN HARDIN". 

heavens, its dews, its rains, and its sunshine — its general course has been kindly, and 
invited confidence to that extent. But, unexpectedly, a frost nips the cane— defeats the 
hopes and blasts the crop of the sugar-planters, who compose the mass of the staple 
population of that State. The weevil, the fly, or the rust invades and desolates the 
wheat crops in the State of Ohio. The rot or the frost visits and destroys the cotton 
crops in the State of Mississippi. The worm besieges and destroys the growing tobacco 
in Virginia, and the army worm marches across the plains of Kentucky, and desolates 
its fields and its meadows. The existing remedial systems in their several States were 
enacted in auspicious times, and suited to their prosperous condition— to the habitual 
kindness of the heavens. 

What is to be done ? Shall a single unseasonable frost in Louisiana subject the sugar 
plantations of that State to instant sale under the hammer and their proprietors to ruin ? 
Is there no remedial power in that State which can be exerted by its Legislature, to 
avert so great a calamity? Is the sovereign remedial power of Virginia to be van- 
quished by the tobacco worm? Can the army worm conquer the State of Kentucky, 
and disarm it of its remedial energies ; and must the legislative remedial power of the 
great State of Ohio, yield to the force of the feeblest and most contemptible insect 
tribes? The effects of a late frost, or of a long, protracted rain upon the cotton of 
Mississippi, must remain alike remediless. And must the good people of these States 
be told that there exists no power in their governments to soften the rigor of these visi- 
tations — visitations which, if they can not be softened by remedial enactions, must 
eventuate in the ruin of the great body of the staple population of these States, and in 
the alienation of their affections from that government by the sternness of whose indif- 
ference to their calamities, they will suppose themselves to have been destroyed? They 
will have been made from good citizens, in whose affections the government had its best 
anchorage— an anchorage guaranteed by all domicilary sanctities, enemies to their gov- 
ernment—adventurers ready to flock to the standard of experiment or revolt. They 
may gain, they can not lose. They have lost their homes, their firesides, and their 
altars, with which their patriotism was identified. They had a government— they had 
a country— they have now neither — they have both to seek. The force with which 
David subverted the empire of Saul was of that description. " And David, therefore, 
departed thence, and escaped to the cave Adullam, and every one that was in distress 
and every one that was in debt and every one that was discontented, gathered them- 
selves unto him, and he became a captain over them," etc. (i Samuel, chapter xxii, 
verses i, 2.) The dangerous impolicy of the doctrine, ought not, it is believed, to have 
been without its weight with the judges, when they were advancing by construction to 
its establishment. 

The power of enacting remedial laws is not, indeed, denied in terms to the Legis- 
lature; they are permitted, say two of the judges, to enact them prospectively; but in 
the case just put, and, indeed, in all the cases, in which, to avoid public calamity, the 
exercise of the remedial power would be necessary, or could be useful, it must not be 
exerted in mitigation of the influence of unforeseen and unexpected events upon exist- 
ing contracts. The power accorded by a majority of the judges to the State never 
could be wisely exercised in relation to those upon whose contracts it would operate; 
they would have been made with such a knowledge of the existing pressure as would 
not entitle those bound by them to exemption from it. To say to a great portion of a 
community who had become indebted by a reasonable anticipation of their resources, 
and were about to be ruined by an unexpected revolution in the state of affairs, that 
the rigor of their condition could not be alleviated; that the sovereign power of the 
State could not be exerted to soften it ; that their calamities, although unexpected, and 



APPENDIX. g 2 7 

of a character that prudence coulrl not have averted, must be Lome, if it should 
grind them to dust. That the remedial power of the State could only be 
pectively; exerted so as not to benefit or to save them, but to benefit a 
creditors, and speculators, who might grow rich by their irremediable rum. 1 
State thus to speak to her afflicted citizens, would be ungra< ious, at least, at .1 n 
to them, and somewhat humiliating as it related to herself. The powe 
the judges to the Legislature, is the power of en. Kiin- a remedial j tern in tim< 
great public calamity, not for the purpose, or in the view, of savin- the « itizena of the 
State from ruin by its pressure, but for the purpose of being used when calamity, its 
causes and effects, shall have passed away— that is when it would be inappro] 
would not be needed. It is not, therefore, unworthy of remark that the perm: 
conceded by the two judges to the Legislature to enact remedial laws prosper tivel 
in effect, in consonance with the opinion of the third judge, which denies to this 
department the power to enact remedial laws. For having denied the ex. it to 

the States, in the only cases, and under the only circumstances, in which the 
exist a motive to exercise it; their permission of the power, where it would be me 
dient, and even silly, to exercise it, can be neither more nor less than a disguised denial 
of it. It is, to say the best of it, giving to the people a stone when they ask (<.r bread. 
But there are other aspects of the opinion, believed to be irreconcilable with princi- 
ples of political orthodoxy. It is of the essence of sovereign power, that there -hall 
exist no restraints upon its exercise other than those imposed by the laws of its existence. 
That it shall know no restraint upon its exercise which is not found in fundamental 
law or in its own discretion. When, therefore.it is restrained from action, or restricted 
in its agency, by any other cause or power, it ceases to be sovereign, and acknowledges 
the power by which it is restrained to be paramount. The restraining power must, m 
the nature of things (so far, at least, as relates to itself and the power restrained 
sovereign ; and the power restrained must, on the same principle, be vassal. According 
to the opinion of the court, any two citizens of the State may, by contract, oblige the 
State to retain the remedial system existing at the time of it- date, until it shall please 
the one, or the other, to resort to the forum for its enforcement, or for reparation for it- 
infraction, though the contract be executory, and not to be performed for t went] 
even thirty, years thereafter. If the State shall, in its advancement in science and 
refinement, have found it necessary to repeal the system, the repeal is to go for noth- 
ing, as it relates to creditors by contract, anterior to its repeal. They will have the 
right to exact from the State a recovery of their claims, according to the long-since 
exploded and, perhaps, forgotten system. It is not less a rule of law, than of good sense 
that a law by its repeal goes into non-existence, and can not be afterward efficient : that all 
proceedings depending upon a law, at the time of its repeal, fall with it. unless there 
be a saving in the repealing statute in their favor. But this rule is reversed by tin- 
decision, and a repealed statute is either not repealed, or it is re-enacted by the court. 
Either the State has not the power to repeal it, in relation to creditors of that descrip- 
tion, or the court has the power to re-enact it in their favor. But not only have any 
two citizens of the State this control over the sovereign power which it possesses, but 
any two, of any State, nation, or kingdom have like power, so that the 
legislative power of the State may be exerted in the alteration of amendment 
laws, subject to the supervision and control of creditors, alien or domestic, civilise 
savage. This limitation upon the exercise of legislative power can not be viewed in 
any other light than as a courteous denial of it, for when it is considered that 
the relation of debtor and creditor is one of continuous ami unceasing recurrence 
throughout the societies of the civilized world, that the same person is almost a! 



628 BEN HARDIN. 

debtor as well as creditor, that the same persons are debtors as well as creditors, under 
contracts of different dates, and of all possible modifications. The relation of debtor 
and creditor will present itself to the view of intelligence as a fiducial stream which, 
like the natural, consists of confluent globules, incapable of separation for any useful 
or practical purpose, within the scope of legislative power, for society never can be 
divided into two classes, the one debtor and the other creditor. The waters of the 
ocean might as well be divided, the salt from the fresh. 

Each of the judges condescends to notice, in the division of the subject, the con- 
stitution of the State. But each seems to have extracted enough, by the process of 
construction, from the tenth section of the first article of the Constitution of the 
United States, to vacate the State laws, and to invalidate the power employed in their 
enaction. The third judge does, indeed, invoke to the aid of his construction of that 
section the ephemeral effusions of the revolutionary period of the American history, 
not excepting even the querulous ebullitions of foreign ministers. But neither con- 
descend to show by reference to, or comment on, the provisions of the State constitu- 
tion, that his construction of the former is in harmony with, or is supported by, the 
latter. The thirteenth section of the tenth article of the Constitution of the State 
of Kentucky is the part of that instrument to which they are presumed to have 
alluded. It is in the following words: "That courts shall be open, and every person, 
for an injury done him in his lands, goods, person, or reputation, shall have remedy by 
due course of law, and right and justice administered without sale, denial, or delay," 
which should be considered in connection with the fourteenth section, which imme- 
diately follows it, and is in these words: "That no power of suspending laws shall be 
exercised, except by the Legislature, or its authority." These two clauses are evi- 
dently and emphatically addressed to the judiciary. By the first, the duty of admin- 
istering justice by the due course of law, without sale, denial, or delay, is enjoined 
upon the judges; they are not to make laws, or repeal laws, but are to administer 
justice, according to the laws, by due course of law. The laws enacted by the Leg- 
islature are to form the rule of decision. They can not repeal or suspend them. 
They must conform to them in all their adjudications, unless, indeed, laws are obvi- 
ously and palpably unconstitutional. But the judges have, in this case, not only repealed 
the laws of their State, but they have repealed the fourteenth article, last above quoted, 
of the Constitution of their State. They have, moreover, re-enacted laws which have 
been repealed ; and two of them have invested themselves with this power, by elaborate 
and lengthy disquisitions of an abstract and metaphysical character. The third is as 
blunt as he is bold in the vacation of the laws of his State. But ought they not, it may 
be asked, to have displayed in the process of their construction, some regard to the 
opinions of the sages and patriots who have spoken and acted on this subject ? Was the 
judgment of the convention who formed the State Constitution, and of the Congress 
who explored it and admitted Kentucky into the Union as an independent State, upon 
the conviction that her Constitution was not incompatible with that of the United 
States; strengthened, too, by the approving intellection of the State, under the most 
solemn sanctions, in its practical exposition during a period of twenty-four years, 
unworthy of their regard? Should these considerations have been lightly considered ? 
Should they have weighed nothing with the judges, especially when they were travel- 
ing the devious path of dubious construction — a path for which they had left the well- 
beaten and long-trodden highway? 

In the formation of the State Constitution, the best, the most experienced intellect 
of Kentucky was employed. The members of the convention had before them the 
Constitution of the United States. They were invoked by their own interests, their 



APPENDIX. 

own rights, by the interests, prosperity, and rights of theii 

by all the .solemn considerations which ai iciated in the human mind, witl 

blessings of civil liberty, and a Republican, the besl (on,, 

explore well the ground which they occupied; and so to define .u,d establish the lights 

of Kentucky that they might co-exist harmoniously with the pre-established rigl 

the United States. And il can be supposed thai tin- discovery DOW made by the three 
judges escaped, not only their research, but the research and oh 
gress of the United States, by whose solemn ac( tin- Constitution <•! Kentuck) 
approved, and she thereon admitted into the Union. How did it happen that thi 
covery was not made by these judges, or their predecessors, during the last tw< 
years? How happened it that the enlightened Si..:,- ol Vii inia g the 

obligation of contracts since the year 174S, and that none of hei judges and - 
had the acumen to discover it? I low did it happen that all the - mmitted the 

like violation of the obligation of contracts, during the pressure • ed by the 

embargo, and that occasioned afterward by the war. in their remedial actions, and that 
there was not discernment enough among the American people to make the d 
and proclaim the wrong? Were the discoveries of their wisdom stilled by the im; 
of their patriotism during those trying junctures ; and was it, therefon . ed to the 

Appellate Court of Kentucky to promulgate the discovery at this time, when the 
tical utility ami intrinsic strength of the principle might be displayed in the instant 
prostration of a remedial system, which the Legislature of the State, under the illusion 
that it possessed the power, had, by a series of successive annual enactions, accommo- 
dated to the condition of embarrassment into which the people had been unexpectedly 
thrown, by causes not within their control? 

It is true, the United States Bank did not exist, during all the time referred to, in 
that almost boundless amplitude of dimension, in which it has seemed latterly to have 
been arrayed on the part, and under the fostering care, of the national courts, against 
the States. That is a monied institution, and (as money is power), of course, an insti- 
tution of power commensurate with its capital. Its motto is, " Pay me that thou 1 
me.'' A rigid punctuality (but ill according with the agricultural habits and varying 
condition and resources of most of the States) is exacted by that institution. From it, 
therefore, such an exposition of the tenth section of the first article of the Constitution, 
as would by paralyzing the sovereign power of the States, remove all impediment- I 
operation according to the laws of its nature and contexture, might have been e 
It is formed to prosper only by the metallic punctuality, which it enforces with ren 
less rigor. Its doctrines and faculties are favorable only to commerce, and to 
mercial societies. It is not intended to be intimated that the decision was 
under any conscious influence from that quarter. Impurity of motive is nol 
to the judges; but as the consequences of an erroneous opinion may lie .is injuri- 
ous to society as a corrupt one, society is under no more obligation to submit 
palpably erroneous opinion, if it be extensively and radically injurious, than to an obvi- 
ously corrupt one; although, it may be believed that the judges who delivered the 
former, are, as in this case, incapable of the latter. When error, associated with purity 
of motive, emanates from the judicial department, the question should be, can i, be 
tolerated compatibly with the great and substantial rights and inti mmu- 

nity? If it can, it should be connived at; if it can not, it should be combated and 
refuted. At least, it should be denied the power of propagating it-elf. The 
to say the least of it, is believed to be of that character. The sup] that the 

remedy alone constitutes the obligation of a contract, is predicated upon an entire want 
of confidence among men— upon the extinction in the human heart, nly 1 



630 



BEN HARDIN. 



its honorable and honest sensations, its love of justice, and its charitable impulses, but 
its social tendencies— a predication at war with the first principles of civil government. 

Confidence is the principle of cohesion in society ; its function in the moral region 
is analogous to that of gravitation in the natural — it is the offspring of the social, self- 
ish, and religious tendencies and bias of human nature. The decision takes it for 
granted that, in all contracts, the parties, instead of confiding in the honesty, capacity, 
and punctuality of each other, confide alone in the power of the government as dis- 
played in the existing remedial laws, to coerce performance. That is, that every con- 
tract is made, not only with the knowledge on the part of the creditor that it will be 
violated, but with the intention on the part of the debtor to violate it. And, of course, 
that the creditor contracts for the purchase of a lawsuit, in which he holds the State 
bound to let him have the very identical law for which he contracted — the law which 
he purchased from his debtor — and for the payment of which in kind the State was 
bound as his security. The tendency of such a doctrine to demoralize the people — its 
anti-social and degrading tendency — must be too obvious to require illustration. The 
old maxim, "that the law abhors a multiplicity of suits," is reversed by this decision, 
and the rules and the legal machinery of litigation are made negotiable, and proclaimed 
as the obligation of contracts. 

There is a striking peculiarity of doctrine proclaimed by the decision, which has not 
yet been noticed, and that is, that the existing shape of the remedy at the date of the 
contract is binding upon the debtor, and upon the State, but not upon the creditor. 
He may, at his option, vacate or affirm the law altering the remedy which constituted 
according to the decision, the obligation of his contract, on the ground that it is uncon- 
stitutional and void. Yet, the law which is thus void, absolutely so, shall be valid if 
he shall so choose, and, though absolutely void, shall bind the debtor and his security in 
a replevin bond, taken under it, until the creditor shall deign to indicate his will to the 
contrary. If a contract shall be made when the law allows a replevy of three months, 
a law repealing that, and allowing a replevy of twelve months, is unconstitutional and 
void, if the creditor shall so choose, and his debtor must be subjected to instant execu- 
tion. He can not replevy for three months, because the law allowing that length of 
replevy has been repealed. He can not replevy for twelve months, because the time 
fixed in the remedy, which existed at the date of the contract, was three months. Its 
repeal was not unconstitutional and void, as relates to the debtor, because, says the 
court, gravely, its repeal is beneficial to the creditor. If the law allowing a twelve 
months' replevy be repealed, the debtor, upon a contract made during its existence, can 
not be availed of its provisions, because, says the court again, gravely, its repeal is 
beneficial to the creditor. 

The old doctrine of the law, of reason, and of philosophy, that it is of the essence 
of a contract, that it be mutual and reciprocal in its obligation, that it be binding upon 
both, or upon neither, is reversed and vacated by the decision, which seems throughout 
only to require that the debtor shall be bound to the creditor. 

But if time be an item of any importance in a contract, and the remedial system 
under which it is made forms the total of its obligation, then an abridgement, or aboli- 
tion, by the Legislature of the length of replevy to which the debtor was entitled by 
law at the date of the contract, must, according to any fair reasoning, be as unconsti- 
tutional and injurious to the debtor as its enlargement, or prolongation, would be to 
the creditor. The alteration of the time either way must be valid or void as to both or 
neither. If the creditor contracted in the view not of being paid by the time stipulated 
in the contract, but the time stipulated, or rather designated, in the remedial law, then 
the debt is evidently not due until the expiration of the time designated in that law. 



APPENDIX. 

But this new doctrine is either not well understood by the court, ... 

unfortunate in their development of it. While they say that I 

system forms alone the obligation of contracts, they say thai the Ian ol estal I 

the courts, and arranging their sessions, is no part of the reined.. 

fore, they permit the Legislature to alter the judicial system at pi, 

diminish the number of terms or sessions in th , reduce them I 

year, or one in two years, without impinging upon the Constitution ol the United 

States. And why is not this law arranging the courts a pan of the remedi il 

Let the chief-justice answer: "Because the obligation .-I" a contract 

remedy, and not in the court which administers the remedy; and that, though the 

courts may he altered, or the times and pli i holding them changed, lh< n 

will be the same. It is true that the remedy will be thi n b] but thai 

result as an indirect or collateral consequent i One would suppose that th< 

when forming a contract would not, at the tunc they were contemplating the rem 

system as the obligation of it, be so entirely abstract as to overlook th< and 

their agency in the enforcement of it. They would he apt to consider thi 

chief actors in the remedial drama. To consider the remedy as the obligation <>( a 

contract, without considering the forum, or the judicial system, according to wh. 

is to be administered, is marvelously abstract. It is to suppose that a violent I 

may be reduced by the contemplation of the lancet, without it-, actual use in 

tion. That the remedy for the disease consists in the theory of tin- healing art, and 

that the presence and agency of the doctor in the actual administration of medicine, 

constitutes no part of the remedy— that it is alike indifferent to the sick man whether 

he shall be visited once or three times a month by the physician. His \isit> and 

agencies are but indirectly and collaterally connected with his cure, or, rather, with the 

remedy which is to produce his cure. The doctrine, that the judicial is n< 

the remedial system, is one upon which courts may he dispense.] with alto-ether, for if 

their presence and agency is no part of the remedy, and the remedy constitutes alone 

the obligation of the contract, then their presence may he dispensed with without 

impairing that obligation. 

The judges were driven to the necessity of asserting that the judicial was no | 
of the remedial system — for if they had admitted that the judicial formed a part of the 
remedial system, then, according to their own theory, if the Legislature should ordain 
that there should hereafter be but one, in place of three, terms of the court in ■ 
year, it would be competent for the creditors in all existing contracts, to order tl 
to sit three times in each year, and we should have four in place of .me term in every 
year — three ordained by the creditors and one by the Legislature. The judges would 
then, also, alike with the Legislature, be under the control of creditors, but this • 
the sense in which the great body of the community has viewed this matter- — they 
sider the remedial machinery and agency of the government as the life and soul >>f t he 
remedial system; they believe that the essence of the remedy consists mainly in it- ; 
tical application ; and that it might as well not exist, as exist and ii"t be administi 

The farmer knows that the remedy for the weeds, which infest his fields, is n..t in 
the plow, the hoe, and the team, but in the seasonable use and application ..f them; 
and that his crop is not to be affected indirectly and collaterally only, if he uses them 
but once, in place of three or four times during the season. But if he shall fa 
rienced by providential visitation, or otherwise, a loss of a portion <•( his team. 
diminution of his laboring hands, he will be constrained to use the plow and th< 
more frequently toward the extermination of the weeds than he had inclined, or intended 
to do, or would have done under more prosperous circumstam 



632 BEN HARDIN. 

But there is an obvious distinction in the nature of things between right and rem- 
edy. The laws which relate to right enter into and form an essential part of the obli- 
gation of every contract and can not be altered without impairing it. The laws of 
remedy are in the breast of the Legislature, and may be altered or amended as its dis 
cretion shall direct. This has been attempted to be shown (it is hoped successfully) by 
inferences drawn from first principles. It will now be considered upon the ground of 
authority. The first case referred to will be found in I Bibb, 561-9. It is the opinion of 
the Appellate Court of Kentucky, composed of Justices Bibb, Boyle, Wallace, and Trimble. 
It is in the following words: " Upon the propriety of the remedy by petition and sum- 
mons in this case, notwithstanding the specialty was given previous to the statute we 
can have no doubt. The statute is general as to the description of direct debts 
whether they have commenced before or shall exist after the passage thereof. The 
statute does not change the essence of the contract ; it is the mode of recovery only 
which is changed. If the proper distinction is observed between those laws which have 
reference to the essence, nature, construction, or extent of the contract, and those 
which have reference only to the mode of enforcing the contract, the question will be 
plain. The lex temporis must be regarded in giving a decision upon the essence and 
nature of the contract. The laws existing at the time of seeking to enforce the con- 
tract must govern and determine the kind of suit which may be brought — the means 
afforded by the laws for enforcing a contract, in case of breach of non-compliance, 
makes no part of the contract. If the parties to the contract act in good faith, they 
intend to perform the stipulations, and, therefore, can not be supposed to have stipu- 
lated for dilatory proceedings, in a suit for enforcing the contract. The modes of 
bringing suit, and of execution, are distinct from, and make no part of, the contract 
itself. They do not enter into the essence of the contract. So the forms of suit, and 
of execution, in our own country, at this time, or at that, make no part of a contract, 
at the one time or the other, and the Legislature is at liberty to adopt this or that mode 
of enforcing contracts, which the circumstances of the country may suggest as expedi- 
ent." This doctrine was afterward reiterated and affirmed by the same Court in the 
case of Reardon vs. Searcy's heirs — reported in 2 Bibb, 103-5. The Court was then com- 
posed of Chief-Justice Boyle and Justices Wallace, Logan, and Clark. The following 
is their opinion, so far as relates to this subject: "It is certainly a well-settled rule that 
the law, at the time the contract is made, composes a part of it, so far as relates to the 
nature and construction of such a contract; but equally well-settled that the remedy to 
enforce such contract must be according to the law in force at the time such remedy is 
sought. The subjecting property to execution, which was not so at the time the con- 
tract is made, does not, in the slightest degree, impair the contract, it only extends and 
enlarges the remedy. Contracts are not made with an eye to the law that shall enforce 
them, or to what property shall, or shall not, be liable to execution, but with an expec- 
tation of each party's performing with good faith what he has stipulated to do." This 
distinction between right and remedy thus solemnly uttered and reiterated from the 
Appellate tribunal of the State, with the sanction and concurrence of the chief-justice, 
is noticed by him in the late decision, with the passing remark, that the point settled in 
the former case was, that a contract for a direct payment of money, entered into before 
the passage of the petition and summons law, might be enforced under the provisions 
of that law, and that in the latter case the point settled was, that lands might be sold 
under execution for the payment of debts contracted before the passage of the law sub- 
jecting lands to sale under execution for the payment of debts. 

It seems to have escaped the recollection of the chief-justice that he had, with his 
brother justices, in the case of Graves vs. Graves' executor, affirmed the distinction 



APPENDIX. 

between right and remedy so strongly, and so justly taken in the two 

The opinion in that case was penned and delivered bj the < hief-justice himself, and ii 

to be found 2 Bibb, 20S — hi-, language in relation to adoption of righl and r< 

follows: "With respect to the nature and construction ol contra* ts, and the 1 

obligations of parties arising out of them, the principle is well settled that 

the place where the contracts were made U i<> govern; but with regard I 

the principle is equally well-established, that the law of the country, where the 

is sought to be imposed, might to be the rule of decision. The itatute of lira I 

does not affect the validity of the contracts, but the time of enfon ing it. or, in 

words, it does not destroy the right, but withholds the remedy." 

Wherever we find the remedial power to exist, whether among erratic h 
state of nature, or among people in civil society, we find it • 

discretion of those in whose hands it i> placed. In the case "t the Bank of Colun 
vs. Okely, reported in 4 Wheaton, 244-5, tne Appellate Court of the United S 
hold the following language on this subject: "In giving this opinion, we attach n< 
importance to the idea of this being a chartered right in the hank. Ii is the remedy, 
and not the right; and, as such, we have no doubt of its being subject to the will ol 
Congress. The forms of administering justice, and the duties and powei rts, a 

incident to the exercise of a branch of sovereign power, must ever be subje< I to legis 
lative will, and the power even therein is unalienable so as to hind subsequent Legisla- 
tures." And in the same book (page 200-1) the same court, in the ca iwnin- 
shield vs. Sturges, speaks as follows upon this subject : " But a still more satisfacl 
argument is, that the convention did not intend to prohibit the passage of insolvent 
laws. To punish honest insolvency by imprisonment for life, and to make this a col 
tutional principle, would be an excess of inhumanity which will not readily he imputed 
to the illustrious patriots who formed our Constitution, nor to the people who adopted 
it. The distinction between the obligation of a contract and the remedy given by the 
Legislature to enforce that obligation, has been taken at the bar, and exists in the nature 
of things. Without impairing the obligation of contracts, the remedy may certainly 
be modified as the wisdom of the nation shall direct. Confinement of the debtor may 
be a punishment for not performing his contract, or may be allowed as a means of indu< • 
ing him to perform it. But the State may refuse to inflict this punishment, or may 
withhold this means, and leave the contract in full force. Imprisonment is no part of 
the contract, and simply to release the prisoner does not impair its obligations."' 

The doctrine recognized in the cases just quoted from Wheaton, was affirmed by t 
Supreme Court of the United States in the case of McMillon vs. McNeil, reported 
the same volume, the case which the chief-justice finds so difficult to understand, and, 
therefore, devotes it to the fate which he inflicts upon the remedial laws of t 
repeals and vacates it. In that case, the Supreme Court, pursuing the distinctio 
down in the case of Crowninshield vs. Sturges. between right and remedy, deten 
that a law of the State of Louisiana, which provides that a debtor who shall surre. 
his effects for the benefit of his creditors, shall be absolved from the payment of a 
debts which he may have at the time of such surrender, was unconstitutional, whether 
the debts thus declared to be discharged were contracted before or after the pa 
that law. Whether passed before or after the contract was made could not 1 
for, by the contract, the creditor had a right to his money, and to re 
to the remedial laws of that State. But the law discharged the debtor from the ; 
ment of it, and, therefore, no matter when it passed, impaired or, rather, 
the obligation of the contract, and was, therefore, void. The law. evidently, « 
the extinction of the right, and not to the modification of the remedy. The 



634 BEN HARDIN. 

justice having taken it for granted that the only law of right was to be found in the 
law of remedy, and mistaking the law of Louisiana for a law entirely remedial, and 
having settled it in his own mind that a remedial law might be enacted to operate pros- 
pectively, and the contract in that case having been made after the passage of the law, 
he was at a loss to see why it should not operate upon the contract, so as to discharge 
its obligation, the obligation consisting, according to his theory, in the remedy alone. 
He seems to have overlooked the laws which regulate right, and entered into the 
essence of the obligation of contracts, in the expectation of finding that obligation in 
the laws of remedy. The laws of nature, when well understood, are the perfection of 
reason, the common law is the perfection of reason. Therefore the laws of nature and 
common law are the same. The common law is made by the constitution which 
adopts it the law of this State. Whatever duties, therefore, the laws of nature exact 
from the conscience of men, in relation to obligations of the perfect sort, the common 
law makes the same exactions, and gives to the obligation legal force and effect, or, as 
jurists say, unites the external to the internal obligation, and binds the parties to the 
performance of it. 

The common law rules in relation to the validity, obligatory force, and binding 
effect of contracts, are known to all lawyers ; though all may not have traced them up 
to the laws of nature — their true and legitimate source. Those rules require that the 
parties to a contract must be able to contract ; that is, they must have arrived at the age 
which indicates competent maturity of discretion ; they must not labor under disability 
at the time of contracting; they must possess sanity of mind and memory; they must 
be in a situation to exercise freedom of will, and they must exert that freedom of will 
in the formation of the contract. The subject matter of the contract must be legitimate 
— unforbidden by conscience, or what is the same thing, law — for law and conscience 
unite in the consecration of all the ingredients which enter into the essence of a con- 
tract in civil society. These are some of the rules of law in relation to the validity of 
contracts which can not be impaired by any legislative enaction ; from these the legal 
obligation of a contract flows ; and the remedy furnished by the Legislature, instead of 
constituting the legal obligation, is only to be used when that obligation has been vio- 
lated, to obtain reparation for its infraction. The Appellate Court would seem to have 
mistaken the means for the end ; the effect for the cause ; the remedy for the disease ; 
a broken contract, a violated obligation, is the disease. The Legislature enacts the 
remedial laws, the courts administer them, and the cure is effected. The process is 
sometimes rapid and sometimes tardy ; and, more or less so, according to the morbid or 
salubrious state of the social atmosphere. This radical mistake into which the court 
has fallen, in relation to the laws of right and remedy, runs through the decision and 
taints all the illustrations which it employs. 

The first case selected by the chief-justice, to illustrate the new theory, is that of the 
parol contract for land under the statute of frauds and perjuries, which, he says, is not 
obligatory, because the statute denies remedy for its violation. He forgets that the very 
denial of the remedy is an implied admission of the contract ; indeed, the statute is 
predicated, upon not only the tacit admission, but the avowed fact that those contracts 
possessed at common law inherent legal obligation; and the statute denies remedy to 
cases of that kind, not because of their destitution of legal obligation, but because in 
the application of the remedy for their infraction, there was danger that more injustice 
would be done by perjuries and frauds, in its application than by withholding it : and 
even since the statute, where a contract of that character has been so sanctioned by part 
performance, that the fraudulence of refusing to complete it, overbalances the dangers 
of the frauds contemplated by the statute ; or where the danger of the perjuries con- 



APPENDIX. 



^>35 



templated by the statute are avoided by the admission of the contract by I d- 

ant in his answer. Their intrinsic legal obligation is recognized and they are do re« 
be carried into effect, by all the courts in England and America, where technicality I 
not the ascendency over great first principles. 

The chief-justice was not less unfortunate in his illustrative selection of the 
of limitations. That statute decrees or withholds the remedy, nol upon the ground ll 
the remedy is the legal obligation of the contract, which it bars, but upon the presump- 
tion that the obligation has been discharged by payment. The reasonable pre umption 
in relation to every man, is, that he will be attentive to his interests. The obli i re- 

sumed, from the length of time in which he has forborne to assert claim, to hi 
claim ; or, in other words, the claim which he had is presumed to have been disi harg< 
and, therefore, and not because the contract had no legal obligation other than the rem- 
edy — the remedy is withheld by the statute. 

The quotation from Pothier will be found, upon examination, not to have been 
more felicitous than the last. That author who deserves the eulogies bestowed upon 
him by the chief-justice divides obligations into three classes. First, natural and civil; 
second, civil obligations; third, natural obligations. "Obligations are commonly," he 
says, "both civil and natural. There are, however, some which are merely civil obli- 
gations, without being also natural, to the performance of which the debtor may be 
constrained by law, although they are not binding in conscience. Such is the obliga- 
tion which results from a judgment, erroneous in law or fact when the time within 
which it might have been reversed is past, or from an unjust judgment from which 
there is no appeal. In either case, the defendant is bound by the judgment, and may 
be constrained by legal means to pay what, in conscience, he does not owe. It is the 
authority of the judgment rei judicata, which forms this obligation." The obligations 
which are natural and civil are the common cases of contract, above alluded to, in 
which the obligation of common law unites with the obligation of conscience, and 
constitutes the legal obligation, which the Appellate Court thinks is only to be found 
in the remedy. The case quoted by the chief-justice is of a merely civil obligation, 
vinculum juris, and is exemplified by Pothier, in the case of a judgment at law, which 
is erroneous, but which, owing to the lapse of time, or some other cause, can not be 
reversed, in which case he tells us the defendant is bound, not by the remedy, but by 
the judgment, and may be constrained by legal means to pay it. By the judgment he 
is bound; the obligation, then, is in the judgment, and not in remedy. He may be 
constrained by legal means (viz: the remedy) to discharge the judgment by which h< 
bound, in which this merely civil obligation exists. Natural obligations are binding 
only in honor, but, according to the chief-justice, natural and civil obligations are per 
se of the same sort, and have no legal obligation but what is to be found in the remedy. 

When a suit is commenced upon a contract, that contract is either obligatory, i 
not obligatory; if it is not obligatory, the suit is fruitless— no judgment can be pro- 
nounced upon it; if it is obligatory, the suit is brought because its obligation has been 
violated; not because the remedy has been violated ; the remedy is afforded only upon 
the prediction bhat the obligation has been broken. When the case comes before the 
judge, he does not look forward into the laws which regulate the process of remedy, but 
he looks upon the contract ; the situation and condition of the parties ; the circumsl 
under which it was made ; the fairness practiced by each party in the formation of 
and he ascertains by this kind of examination what was the will ami intention of 
parties, in relation to the subject matter of the contract, and thus asi ertain the nature 
and extent of the obligation; for will is at the foot of all obligation. He nexl 
tains by the appropriate inquiries that the obligation has been violated, and applies the 



636 BEN HARDIN. 

remedy afforded by the Legislature, according to the remedial laws. It would certainly 
be idle in the judge, before he had ascertained that such obligation had been incurred 
by either party to the contract, to inquire what kind of execution might be issued, 
whether it could be stayed by writ of error, suspended, or replevied; and that, too, 
with the intent of ascertaining whether he had, by his contract, incurred any obligation. 
It would be to invert the order of nature; to mistake the consequences for the cause. 
Execution is most evidently not the cause, but the consequence of judgment. We 
would smile at the man and deride his pretensions to philosophy who would tell us that 
the prolific and vivifying influences of light and heat, produced in the sun, the power, 
and imposed upon it the duty of emitting light and heat. That the solar concoctions 
with which our senses are regaled were the cause, and not the effect, of solar radiance. 
The benign influences of a wise remedial system, in civil society, upon the condition of 
its members, may be assimilated to the effects of physical causes upon the material 
world. 

The remedial systems throughout the civilized world, are predicated upon the fact, 
that the contracting parties confide in each other, that each will perform his contract 
according to its stipulations, within the time agreed upon, and that neither of them looks 
to, or thinks of, the existing remedial system, as constituting the obligation which he 
incurs by the contract ; and that the Legislature possesses the power of altering, or 
amending, that system as experience or emergencies shall dictate the propriety of doing 
so. This course has the sanction of reason, as well as practice; it is even enjoined by 
necessity — for when astipulation for a performance within a given time has been vio- 
lated, no sovereign of which we can conceive, can compel its performance within the time. 
It is irreclaimably gone ; it is with the days behind the flood. All that the sovereign 
can do is to award to the creditor an equivalent for the injury inflicted upon him by its 
violation. If the obligation of the contract, so far as relates to the time of its perform- 
ance, is the time of replevin allowed by law, then the suit must always be instituted 
before the obligation is violated in that particular, which is believed to be inadmissible, 
if not absurd ; for it is a settled rule of law, as well as of reason, that a suit for the vio- 
lation of the obligation of a contract, can not be instituted until the time of its perform- 
ance has passed away. Believing, therefore, that the decision of the Court of Appeals 
displays an exertion of judicial power not conceded to that department by the Constitu- 
tion of the State, greatly injurious, if not ruinous, in its practical effects, to very many 
of the good citizens of this State, and incompatible in the principle which it asserts, 
with the great and essential rights of civil liberty ; with the fundamental principles of 
republican government, and with the best interests, prosperity, and happiness of the 
community, which are, and, indeed, must forever remain, indissolubly associated with 
those sacred principles. 

The members of the Legislature, while they admit the power of the court to declare 
any law unconstitutional and void, which is obviously and palpably so, feel themselves 
reluctantly constrained, by the most solemn obligations of duty, obligations of duty to 
themselves, to their constituents, to posterity, and to the principles of rational liberty 
throughout the civilized world, to make their deliberate protest against the erroneous 
and usurping doctrines of that decision. 



appendix. 637 

NOTE C, PAGE 212. 



THE SHOOTING OK JAMES GUTHRIE BY JOHN HA\ I S 

Since writing the sketch of John Hayes, ihe author has encountered aversion of the 
affair between that unfortunate man and James Guthrie, materially variant from thai 
already given. This account was written in 1S60, during Mi. Guthrie's lift nd if 

not authorized by him, it was put forward as embracing t lie facts as his friend 
the public to understand them. It seems but just to Ins memory, thai this account, 
which may be regarded as his side of the case, should accompany the statement in the 
sketch of Haves. It is taken from a brief biography of Mr. Guthrie, published in 
age's Living Representative Men. Some of its statements are manifestly erronc 
notably that locating the scene of the difficulty at Louisville, instead "f Bardstown, and 
another, that popular indignation drove Hayes from either place. The following i- an 
extract from Mr. Savage's book : : ' : 

"It was about this period " (referring to Mr, Guthrie's residence i" Bardstown) 
"and while still a young man, that he had his noted difficulty with Have-. The latter 
was a member of the old Federal party, a man of brilliant talents, who looked with 
disfavor upon what he regarded the presumption of young Guthrie in assuming a 
tion of equality with himself and others of more experience and standing at the bar. 
Guthrie was not the man to brook intolerance or intimidation; and it is understood that 
on an occasion of some public discussion, he, stung by what he deemed a combination 
to put him down, spoke with severity of the course and conduct of the ring leader- 
Mr. Hayes. Nothing immediately occurred. A few days alterward, and whe 
Guthrie supposed the offense blown over, he was silting on the steps of the Gait 11 
at Louisville, one afternoon, in company with several other gentlemen, amusing him- 
self by whittling a stick. Happening to raise his eyes, he perceived Hayes at the 
distance of about six or eight yards, advancing upon him with a pistol already cocked 
and pointed. Guthrie instantly sprang upon him with the vigor of a tiger, receiving 
Hayes' fire as he advanced, the bullet passing through the right groin. Raising him- 
self upon his sound limb, he jerked the pistol out of his adversary's hand, and u 
the act of bringing it down upon his head, with a force that would have killed him— 
Hayes crying 'murder' all the time at the top of his voice— when the gentlemen who 
had followed him from the steps arrested his arm, and carried him back to the ! 
By these means, no doubt, the life of Hayes was saved. Mr. Guthrie's wound pi 
to be one of the utmost severity. He was confined by it to his bed for year-, and even now, 
having left a slight twist in his leg, it occasions him some difficulty in hi- walk. The 
popular indignation drove Hayes from the place. Hi- fondue- for the bottle incr. 
and in a fit of mania potu he committed suicide by dashing hi- head against a wall." 



NOTE D, PAGE 288. 



THE CENTER OF Till. WORLD. 

The following solution of the above-important question was originally embn 
Chapter XXI. The speech was first published in tin- " Drawei " of Harper's Magarine, 
prior to the late war, and attributed to Mark Hardin. There were t« Mark Hai 

* Page 292. 



638 BEN HARDIN. 

in Kentucky at the period the speech is supposed to have been delivered, both of good 
ability, but, without detailing the reasons for such a conclusion, it is sufficient to say 
that intelligent persons, in a position to judge, have decided that neither of these, but 
Ben Hardin was its author. While this work was in press, an intelligent friend has 
communicated his doubts as to this conclusion, expressing his opinion that John E. Har- 
din was more probably the orator on the occasion. That this suggestion is erroneous, 
could be easdy shown by unpleasant reminiscences of that gifted but greatly erring man. 
The speech is very much in the vein of Ben Hardin, and from internal evidence might 
reasonably be attributed to him — but since the matter is in question, it has been trans- 
lated to the Appendix, and its paternity is submitted to the decision of the critical read- 
ers of this work. 

By way of introduction, it may be observed that no greater folly has marked the 
legislation of Kentucky than the needless multiplication of counties. The only imag- 
inary apology for it is, that it springs from an overzeal in behalf of the principle of self- 
government. Neighborhood becomes arrayed against neighborhood, or an enterprising 
village seeks to rival the village that is the county seat, and therefrom originates a new 
county scheme. The "project" (and so it is usually designated) becomes an issue in 
county politics, and small but earnest and energetic statesmen make it their hobby. The 
matter is rolled round and round, like a school-boy's snowball, accumulating astonish- 
ing bulk in a small area, until what at first was arrant pretense assumes the proportions 
of inevitable reality. 

" We all know how this thing is started," said Mr. Hardin in the constitutional con- 
vention, " and there is no end to it when it is started. A man wants to be a county 
clerk, and he will press it ; and here is a man out of office, and he will press it; and 
then there are men who want the seat of justice nearer their town, and they will 
press it ; and where there is a little miserable town at the cross-roads, the people 
there will press it ; so it is that a thousand little petty interests are brought to bear in 
making new counties." 

When the formation of Larue county was being agitated, Mr. Hardin opposed it. 
He spent some time at the State capital, during the sitting of the Legislature, 
seeking to defeat the measure. Hodgenville was the prospective seat of justice of the 
new county, and its citizens were not unnaturally disposed to "press it." Happening 
in that town on the occasion of a political gathering, when the new county project 
was receiving a most favorable consideration, Mr. Hardin, not waiting invitation, took 
the stand for a speech. His known hostility to the project caused his audience, at the 
outset, to give him the "cold shoulder." Not at all discouraged, however, he pro- 
ceeded with his remarks as follows : 

"Fellow-citizens, I hear everywhere that there is a decided wish to divide Hardin 
county, and some, I regret to say, oppose it. Why? I ask, why ? fellow-citizens. 
Look at this end of Hardin. It comes out of the way. It is detached naturally from 
Hardin. It projects like the toe of a boot; and, fellow-citizens, the toe of that boot 
ought to be applied to the blunt end of any candidate who opposes this just, proper, 
and natural division. (Cheers.) Having shown you that this end of the county is 
thus by nature, and should be divided by law from the other, my next consideration is 
the county seat. To gentlemen as intelligent as you, and as familiar with the section 
to be divided off, I need not point out that Hodgenville will be the center of the pro- 
posed county; and where, but at the center, should the county seat be? (Cheers.) 
Gentlemen, you have doubtless heard the removal of our State capital spoken of. As 
it is, it is tucked up in a north corner of the State, where it is about as convenient a 
situation for the capital of the whole State as Elizabethtown (the county seat of Har- 






APPENDIX. 






din) is to l>e the county seat of your proposed iu-w county. The same 
induce us to separate this part of the county from the othei hould m i 
capital. We must move it, and to the center of the State. Now take a map. Ken- 
tucky is four hundred and twenty miles long, by about one hundred and fort) n 
the center. Now the new county will be on a perpendicular line just mlcs 

from the Ohio River, and two hundred and ten from eai h end ol the State, ai H 
enville is the center of the new county. I have thus mathematically 
you that the State capital should he removed to Hodgenville. | Enthusifl 
Fellow-citizens, I have been inadvertently led into these questions, but 1 will pr< 
farther. In the late war (the war of 1S121 Washington City was burned by the 
ish, and why? Because it was our exposed border. The Nation. d capital ihould he 
removed from the Atlantic coast, and to the center of tin- Union. Kentucky 1- tlic 
great seal set in the center of our mighty republic, as you will SL -c by enumerating the 
surrounding States, ami, as I have already shown you that this is the centei ol Ken- 
tucky, it follows that the National capital should he removed to Hodgenville.' 
some had begun to smell a large Norway by this time, the cheering was not qu 
loud. "Nay," said the orator, in a burst of enthusiasm, " Hodgenville is the cent) 
God's glorious and beautiful world ?" 

" How in the devil do you make that out ?" said an irritated voice in the crowd. 

The speaker, drawing himself up, and sweeping his forefinger in a grand 1 irclc 
around the horizon, said : " Look how nice the sky fits down all around ! " 



NOTE E, PAGE 581. 



BOOKS RELATING TO BEN HARDIN, AND IN WHICH HE IS Ml N 

TIONED. 
Why We Laugh. By Samuel S. Cox. 
Thirty Years' View. By Thomas H. Benton. 
Life and Speeches of Henry Clay. By Daniel Mallory. 
Life of J. J. Crittenden. By Mrs. Chapman Coleman. 

History of Kentucky, two volumes. By Richard H. Collins, A. M., LL. B. 
A History of Kentucky. By William B. Allen. 
History of Kentucky. By Z. F. Smith. 
Life of George Robertson. Written by himself. 

Constitutional and Political History of the United States. By II Von H i-t. 
Flush Times of Alabama and Mississippi. By Joseph G. Baldwin. 
Memoir of S. S. Prentiss. By his brother. 
Life of Seargant S. Prentiss. By Shields. 

Scrap Book on Law and Politics. By George Robertson, LL. D. 
Speeches and Writings of Thomas F. Marshall. By W. L. Bane. 
Centenary of Catholicism in Kentucky. By Hon. Ben J. Webb. 
Spencer's History of Kentucky Baptists. 

Three Decades of Federal Legislation. By Hon. Samuel S. Cor 
Bill Smothers. By Hon. Thomas C. McCreery. 
Life of L. W. Powell. By Ben J. Webb. 
Life of J. L. Helm. By Ben J. Webb. 
Appleton's Cyclopedia of Biography. 
American Encyclopedia. 
Niles' Register. 



64O BEN HARDIN. 

Annals of Congress (1787-1824). 

Congressional Debates. By Gales and Seaton (1824-1S37). 

Debates of Kentucky Convention of 1849. 

Memoirs of John Quincy Adams. By C. F. Adams. 

Bench and Bar of the South and South-west. By Henry S. Foote. 

Leisure Hours. By James R. McConochie, M. D. 

Old Guard. Edited by Thomas F. Marshall. 

Davy Crockett Almanacs. 

History of Methodism in Kentucky. By Rev. A. H. Redford. 

Memoirs of the Life of Rufus Choate. By Professor S. C. Brown. 

Living Representative Men. By John Savage. 

Presbyterian Expositor. By N. L. Rice. 

Biographical Encyclopedia of Kentucky (1878). 

Perrin's History of Kentucky. 

The Law of Homicide. By A. B. Carlton, LL. B. 

Decisions of Supreme Court of United States. 

Reports of decisions of Kentucky Court of Appeals from Hardin to Ben Monroe. 

Legislative Journals of Kentucky. 

Early Bench and Bar of Illinois. By W. F. Lindner. 



NOTE F, PAGE 609. 



BEN HARDIN'S WILL. 

State ok Kentucky, Nelson County. 

I, Ben Hardin, of Bardstown, State of Kentucky, do, this 18th day of August, 1852, 
make and constitute this my last will and testament, hereby revoking all wills heretofore 
made by me. 

I will and desire that my estate, real, personal, and mixed, in possession, remainder, 
or reversion, be divided into six equal parts ; one part to be allotted to Lucinda B. Helm ; 
one part to Kate T. Riley; one part to Sally Dixon; one part to James Hardin's chil- 
dren ; one part to Rowan Hardin's children ; one part to Emily Palmer's children. I 
do further will and desire that if any of James Hardin's children die before they are 
twenty-one years of age, or without children, their portion will go to the surviving sis- 
ter or sisters. If any of Rowan Hardin's children die before they are twenty-one years 
of age, or without children, their portion shall go to the surviving brothers and sisters; 
and if any of Emily Palmer's children die before they are twenty-one years of age, or 
without children, their portion shall go to the surviving brothers and sisters. 

I request that the children of Rowan Hardin be supported out of my estate, at the 
discretion of my executors, until the division of my property takes place, as directed by 
my will. I do direct my executors, hereafter to be named, to sell and convey any part 
of my estate that may be necessary to be applied to the payment of my debts. 

Lastly, I constitute John L. Helm, Thomas P. Linthicum, and William Johnson, my 
executors, and direct that in the sale and conveyance of any of my property it shall be 
with the concurrence of two of my said executors. 

BEN HARDIN. 

Signed in the presence of 

William McAllen, 
W. A. Hickman, 

John Morton. 



I N I) E X. 



A knight in armor 593 

Able, Robert,in convention 

of 1799 '74 

Able, Rev. Robert A., a 
priest 152 

Abolition, Hardin on com- 
mittee 254, 255 

Remarks 255 

Abstinence, Hardin's habits 
of 565 

Accident causing his death 607 

Account of human misdoing 
— his theory in respect to 605 

Adair, General D. L.. on 
Pope, Grigsby, and Stone 
debate 251 

Adair, Governor John ... 51 
Attitude on " relief" . 108, 246 

Adams, John 50 

Adams, John Quincy 

'45, 154. 179. 2 '9 
Allusion to Miss Marti- 

neau 231, 236 

Hardin in the Diary . . . 237 
Kinsman of John Pope . 247 
Extract from Diary . . . 248 
John White's unpunctu- 

ated fluency .... 253. 254 
The French resolution . 256 

Remarks on 257 

Hardin's opinion of Adams 35s 

Dr. A. Jackson 568 

Apprehensions of age . . 613 

Address to remove Appel- 
late Judges fails no 

Favoring Constitutional 
convention 513 

Advocate, Mr. Hardin's 
character as 575 

Age, Mr. Hardin's approach 

to 606 

Sorrows of 606 

Agriculture chief occupation 
of slaves 543 

Akin, Rev. Moses, and the 
Brashearcase 502, 505 

Alamo, death of Burr Du- 
val at 103 

Alerdice murder case . . . 247 

Alexandria canal bill . . 245, 245 

*' All things to all men " 
charged on Hardin . . . 604 

Allan, Chilton 217 

Sketch of 217 

Member of XXIV. Con- 
gress 252 

Allen, Col. Alfred . . . 283, 492 
Opinion of Mr. Hardin . 578 

Allen, James 140 

Allen, John 178 

Allen, John, offers' - bargain 
and intrigue" resolution 
i.i Kentucky Senate . . . 154 

Allen's, W. B., History of 
Kentucky quoted 

218. 247, 254 



Ames, M.tr\ Clemmer, on 
ancieni Washington . . . 230 

An old ECentui U y home . . 

Ancestry of M 1 . Hardin . 

Anderson, 1 rovernor Charles 78 

Anderson, Larz 

Anderson, Robert .... 77 

Anderson, K. C, Jr . . . . 77 
Sketch 84 

Anecdotes, Ros., Waters . 2. ; 
Lost in the wilderness . . 13 

Henry Clay 28 

•' I've got em " 32 

Clay 

Curing a young lawyer "f 
gaming ..... . . 33 

Virginia debating society 67 

Great piety ui 

Jackson and Van Buren . 1 si 

Jenkins 162 

The long stirrup leathei 
Smith's oft-told advent- 
ures 166 

" Red Fox " 217 

Free, Jennie I. . . . 233 

Oyster supper .... 233,234 
Emphasis on the" I" . . 280 
Key and Hardin . . . 280,281 
Small bored rifle . . . 281, 282 
Inundation of new lawj 

283, 284 
Larry Creer in Creason's 

case 284, 285 

Amending the Lord's 

Prayer 285, 286 

An attorney from the oth- 
er world 286 

The grasping landlord . . 286 

Narcissus 287 

"What do you guess?" 

" Bounding " the counties 493 

Dog speech 495 

Attacking "Old Ben" . 499 
Yea, yea, Benjamin ... 

Cy Hultz 501 

Disturbing religious wor- 
ship 502, 505 

Waisi mi's case 505 

The title from the Al- 
mighty 506 

\n agrii nil ural problem . 507 
Clem Hill's audacity . . 507 

Good morning, Mr.W 

-. 508 
The ( rrayson county 
s. hoolmaster ss6 

Crookedness of Solomon 565 
Silurian a friend's patri- 
mony 

Camp-meeting incident . 603 
Hill anil freedom . . . 607 
I Iream of the contested 

will 608 

The Chinese embassy .611 
Ananias' descendants de- 
tected 554 

xiii 



Ann- 
tion 4 - 

Mi 1 

Apperson, Ri 
gat< 

1 

.... 
App 

M 1 . Hardin'i rem..: I 

on . . . 
Appropriations, Mr II 
dm's opposition to 

Argument, Mi II 

methods 

. IrgumentvM a ■ 
A risti 

Arp, Hill, and modern 1 1: 
Arkansa I 

■ 
li" ' gentlemen from 

\ 

I'. Sharp 

\i \ 

Wi, kliffe 

Of Andrew J , 

< 11 I >.i\ id M.-rriu ethi 
\ 

courts 

Association, 

An. 1. kin j •• 1 Ml Ben 

Attorney s-< ieneral, 1 hat 

teristi) s . . . 
Autocrat, Th( 
to n,e of wit . . 

{.dm .in.l I 
). I ).'s without 

1 .... 

Badin, Fathei . . 

1 

I I, An. Ire« I 

h .... 
1 

- 

t, Mr II 

ting by 
Banishment "i ' 

Mi II - ipi ■ 
Bank.Ci immot 

t.-r.-.l 
Its 11 

Bank, ..r Kentucky ' 

l 

Sl|S|i. M ' 

Bank, 1 
1 

Fort; 

Sp 

rd 
Sup; too 

I. an ' - 



XIV 



BEN HARDIN. 



Baptists and Lorenzo Dow 163 

Sarah Hardin 603 

Baptists, separate, peculiar 

oratory 218 

Bar, characteristics of the 

early 168, 170 

Bardstown bar .... ch. xvii 
Relation of Mr. Hardin 

to 485 

Barbour, Ambrose .... 34 

Barbour, Betsey 34 

^See Betsey Hardin.) 
Barbour, James (of Va.) . . 34 
Barbour, James of Mays- 

ville] incident related by 565 

Barbour, Colonel James P. 403 

Opinion of Mr. H. . . . 578 

Barbour, Philip P. . . . 34,52 

Randolph and B 71 

Speaker of XVII. Con- 
gress go 

Sketch go 

Anecdote 01 

Bardstown, sketch of . 161,163 



170 

584 
M 

36 
50 



140 
141 
141 
212 



Characteristics of its bar . 
Barnes, S. M., colleague of 
Mr. Hardin in Senate in 

1851 

B.irnett, Andrew, sketch of 
Barry, Daniel, sketch of 

x 5> 16, 

Barry, W. T 26, 27, 

Counsel in "relief" cases 102 

*' Relief " leader 107 

C. J. of new court .... 137 

Sketch of -i-^-j 

Defense of Desha . . 138, 142 
Defeated for governor 154, 155 

Hardin's sketch 356 

Death 35 6 

Advocate and judge . . . 469 

Beatty, Martin 2 ij 

Beauchamp, Jeroboam, as- 
sassinates Sharp . . . 

Cause 

His execution 

Beckham, \V. N 

Belief in spiritual things in 

stinctive 6 OI 

Bibb, George M . . . 25, 26, 27 

Bell, John 174,219,229 

In XXIV, Congress . . . 254 

Belles of Nelson jfa 

Benton, Thomas H., Thirty 

Years' View 77, 229 

Bernoudy, Mrs n 

Counsel in relief cases . . 

Relief leader 

United States Senator . . 

Advice to young lawyers 

Bible, Mr. Hardin a student 

of 

His first Bible 602 

"Big Bill" Hardin .... 6 
• Big Dignity," Mr. Har- 
din's title for C. A. Wick- 

■'ffe 568 

Bill and freedom 607 

Biography, a rejected item 13 
Mr. Hardin's favorites . . 556 
Black Prince, Ben Chapeze 

so >alled c(5 7 

Blackburn, W. B . . . . ,09, 140 

Blair, Francis P g 2 

Relief leader 107, 141, i 42) 222 
The oyster supper . . . . 234 
Blair, James, and Harry 
Toulmin revise the crim- 
inal law 24 

Sketches of 24 

Bland, Theodrick 84 

Bledsoe, Jesse 51, I3 8 

Blood, Mr. Hardin's belief in 554 



102 

107 

r 55 

472 

602 



I'.lythe, Dr. James . . 4 g, 
Bonaparte, Napoleon . 
Book-lover, Mr. Hardin a . 
Books referring to Mr. H. 
Booker, Paul I., judge . . . 

Sketch of . 
Boone, Dame 



203 

2.S.S 

596 

6; 9 
472 



Border State convention 
Bos-weirs Johnson, a favor- 
of K. 



476.477 
25, 606 



556 



407 
529 

252 
252 

3 2 3 
414 

102 
103 



142 
142 



10 
210 



Botts, Albert G., school ex- 
perience 

Boyd, Alfred, sketch 
Boyd, Lynn.in XXIV. Con- 
gress 

Sketch of 

Boyle county how estab- 
lished 

Boyle, Jeremiah, Mr. H. re- 
fuses to prosecute .... 
Boyle, John, delivers opin- 
ion in relief cases .... 
C. J. of Kentucky . . . . 
Sketch of ... . I04) 105,138 
George Robertson's esti- 
mate 

Becomes a federal judge 
Braddock's defeat, incident 

of 

Bramlette, Thomas E. . '. 
Brashear's case . . . 502, 5 

Bray's case 35, 36 

Breathitt, John, lieutenant- 
governor i 54> , 55 

Candidate for U. S. Sen- 
ate 

Governor ...... 

Breck, Daniel IO g ) 

Breckinridge, James D., ' 
member XVII. Congress 

Sketch 

Bridges, John L., presides 
in Wilkinson's trial . . 292 
Opinion of Mr. Hardin . 
Bristow, Francis M., dele- 
gate in const, convention 
Remark on slavery and 

cities 

Sketch 

Bristow, B. H., reminiscence 

of Mr. H 

British government, Mr. 

H.'s opinion of . . . . 550 

Broadnax, H. P., " what do " 
you guess ?" ... 

Judge 

Sketch of 479,482 

Brown, O., letter of, to J. J. 
Crittenden, referring to 

Mr. H • • 587 

Brown, William, member of 

Congress 78 87 

Browne, R. J., observation 

of 

Bruen, Joseph, railway 

model 

Brush, Rev. G. W., memo- 
rial against clerical dis- 
ability 

Buchanan, James, member 
of XVII. Congress . . . 

In Kentucky 

Mr. H.'s opinion of B. 
B.'s opinion of Kentucky 
Buck suppers at Bardstown 
Buckner, Richard A., . 156 160 
Bullock, E. I., in Wilkinson ' 

case 

Bun van ' 

Burial, incident of Mr.' 

Hardin's '. 6ro 

Burial places and customs 

614, 615 



156 

160 

, 204 

qt 
96 

. 471 
496 

520 

520 
529 

564 



469 
472 



494 

157 

■ 536 
91 

352 
352 
352 
162 



292 
9 



Burke, Edward, his opinion 
of early American bar . 168 
Owsley's speech c o m - 
pared to his efforts . . 368 
Burns, Mr. Hardin fond of 16 
Burr, Aaron, comment on 
General Jackson .... 

Conspiracy 

Mr. Hardin thought it 
fit for romance . . 
Butler, Attorney-General 
Butler, General William O., 
candidate for governor 



146 

358 

596 
239 



363 
riynum against Wintersmith 282 

offspring recogniz- 



Cain's 

able 
Calhoon, town of, visited by 

Mr. Hardin ' 

Calhoon, John, 

Member of XXIV. Con- 

T g, ress 252 

Judge 

Broadnax and Calhoon 
Sketch of . . 
Ill-health .....'.'.' 
Calhoun, John C., . 52', i 47> 
Author of national bank 

in 1816 

Miss Martineau's opinion 
Cambreleng, C. C, member 
of XVII. Congress . . . 
Of XXIV. Congress. . 
Effect of Mr. Hardin's 

speech on 

Camp-meeting incident . 

Campaign of 1840 

Canada and the Hardin mi- 
gration 2 

Caps and hats [ ,3 

Capital, national, why lo- 
cated . 2 , 2 

Capital of Kentucky, 're- 

moval agitated 

Cards, Mr. Hardin's taste 

for 

Lawyers addicted to . 
Henry Clay's taste for 
Carpenter, Samueljudge, .' 472 

Pa Sket T h °. f 478, 479 

Lass, Lewis, secretary of 

war 

Caucus, party VL 

Celebrated cases,WiIkinson 

S? se - • • 289 

Green against Biddle 324- 3 ->6 
De Parcq against Rice 327-331 
Spencer's case . . . 331-,^ 
R. Logan Wicklifife's case 

Cemeteries and burial 
places . . .... .614,615 

Cemetery at Bardstown . . 610 
At Frankfort .... 615, 616 

Centre College I52 

Chambers, Dr., killed in duel 178 

Chambers, Charles .... 156 

Delegate in convention 

Sketch of 

Chambers, John, in XXIV. 

Congress 252 

Sketch of 2- 2 

Champion of Reform . . . 532 
Chapeze, Ben ... 36, 109, 140 
Member of Bardstown 

bar 

Intellectuality of . . 
Sketch of. . . . .194,198 
De Parcq against Rice . 320 
The "Black Prince" ... 567 
Chapeze, Dr. Henry . . 36, 194 
Chape7e, Ken, reminiscence 
of Mr. Hardin .... 562, 563. 



554 

S83 
472 



47i 
480 

483 
583 



. 62 
• 2 3 J 

251 
2 54 

274 
603 

342 



552 



• '4 
32, 35 

355 



520 
529 



•71 
172 



1MM-A 






Character of the Hardin 

family 8, 9 

Of Pioneers 20, 21 

How molded 172 

Impression made by Mr. 

Hardin 497 

Matter of opinion .... 572 
The standard Vof friends 

and enemies 572 

Estimate of Mr. Hardin 
by Thomas F. Mar- 
shall 573 

By B.J.Webb 575 

By J. W. Kincheloe . . . 575 

By Preston Hay 576 

By J. W. Stevenson . . . 576 

ByS. S. Cox 577 

By Alfred Allen 578 

By Col. J. P. Barbour . . 578 

By Dr. Rob Morris . . . 579 

By M. D. McHenry ... 580 

By C. A. Hardin 580 

By R. M. Spalding ... 581 
Characteristic opinions of 

Mr. Hardin 550, 558 

Characteristics (personal)of 
Mr. Hardin . . 29, 37, 163, 164 

As a politician 348 

Fidelity to clients .... 546 
Traits in general . . . 559-571 

Cherry Run school .... 14 
Children, Mr. Hardin's love 

for 594 

Chilton, Thomas 217 

Sketch of 218 

Chinese embassy, the Hong 

peril 611 

■Choate, Rufus 219 

Mr. Hardin's opinion of 

his oratory 353 

S. S. Cox on 354 

'Cholera in Kentucky in 

1832-3 . 166 

Christ, death of, in physical 

perfection 613 

Christian, General William 246 

Chrisman, James S 520 

Churchill, Armistead H. . 472 

Sketch of 477 

Churchill, Samuel B. . . . 474 

Cilley-G raves duel .... 253 

Circuit, riding the .... 340 

■Circuit courts, origin of . . 468 

Jurisdiction 468 

Circuit judges, how created 469 
Character of the early 

judges . 469, 470 

Compensation 470 

Ambition 471 

Labors 470 

Mr. Hardin's opinion of 

471,472, 49 r 
"Sketches of the judges, 

Stephen Ormshy .... 473 

Fortunatus Crosby . . . 473 

Alfred Metcalf 474 

John Pope Oldham . . . 474 

Paul I. Booker 486 

Armistead H. Churchill . 477 

Samuel Carpenter .... 478 

Henry P. Broadnax . . . 479 

Alney McLean 482 

John Calhoon 483 

Cities and slavery 522 

Cities, question of repre- 
sentation 525 

Undue influence .... 551 
Clannishness of the Har- 

dins 11 

Clark, Beverly L., delegate 
in constitutional conven- 
tion 

Sketch of 5*9, 53° 



Clark, I 1 s 

49> 69i ! I . .471 

Sketch 01 

I >'• InIoii .tgilillst I-'-ll 

Exi itemenl follow in . 
I egislat ivi report on 
Respi mse of < 'lark . 
Failure of Add) 
Clarke, Christian . . 1 , 

( llarke, George K gei 

, Mr. II irdin's fond- 

1 '■ 1 r 286 

Emerson's defense of 

translations 287 

Clay, Henry 33, 52,63, 

65, 66,69, 70, 70, 343 

Anecdotes of . . . .28, 29, 38 
Able card player .... 34 

r'ist fight 1 

Speaker in I lou Se "f Rep- 

resentati | 

Relation to M r. II ardin 
Champion of United 

States bank 6a 

Enraged by Mr. Hardin in 

debate 64 

Compromise suggested by 
Mr. Hardin t ad< ipted bj 

Clay . 84 

Resigns the speakership 87 
Sympathy with republii s 

in South Amerii .1 . . . 88 
Abjures the Court contro- 
versy 17 

Incidents of his career . 145 
Reputation in the East . 1411 
Resented Jackson's can- 
didacy 147 

Bargain and intrigue 

147, 148. 153 

Defeats 14; 

Secretary of State .... 153 
Vindicatory speeches . . 153 
Antipathy to John Rowan iv 
Crittenden and Clay . . 158 
Jackson and Clay in 1832 

159, 160 
Leader of opposition . . 160 
United States senator . . 159 
Mr. Clay at Bardstown . 162 

Eloquence of 173 

Debate with Felix Grundy 17; 
Opinion of Rowan . . . 179 
Rowan's opinion of Clay 180 
George D. Prentice and 

Clay 214 

Leader .if Bank parts . 
Miss Martineau's descrip- 
tion 

How he first became 

United States senator. 246 
John Pope and Cla\ 
Musical accomplishment . 251 
i ;r.rn against Biddle . . ^324 
Defeat at Harrisburg . \ . • 
General Scott's banqu< 
Pel sonal habits ■ ■ ■■ 
Resigns as senator . . , 

Valedii tory 

Candidate for president 

1S44 

i )] 1 and new enemies 
re* 1 anm ■ it 

Raleigh letter 

Hardin and Clay . 
y.! 1 party leader . , 
Suaviter in modo ... 
M. D. McHenry on Har- 
din and Clay 35' 

James K. Polk and 1 lay 

itrasted 35' 

Pop opinion of 
Clay 



" I he 

R' 

■ 

nation 

D •), . 

Clcn 

|i r '.. 

I 

Viri 

I 

Mem 11 
and Bi 

II irdin 

1 
1 

tempi 111 1 

Collins, the lu*i 

ected .... 
1 lommitti ■ 1 c 

ineth< 

In constituti 
tion . . 

Comm ( , 

Mr. Hardin 
1 1 

Mr. H 

n- 

strued 

Compensate n law .... < 
Bill lor inti , 

1 • 

age 

Speech •■( M r. Hardii • 

repe.il 71 

Repeal 

. . 1 

- 
Websl '. 

Pari 

Will 

Congressional lil 
Constilii' 

......... v 

l' Ken In 
I ">rni 

Key and Hardin . , 
\V! 

. 
• tir-t and 
I ■' efoi ; 

Mr. Hardin 

pletion .in 

1 
184 1, C. \ >' in 

Ltion f reft rni . . 

Mr. Hardin I • 

ention m< I 

inization . 

■ 

■ 



XVI 



BEN HARDIN. 



Partizanshir 525 

Representation, etc . . . 52=; 
Sketches of leaders . 524, 532 

The silent minority . . . 532 
Mr. Hardin's opinion of 

its sovereign power . . 554 
Convention, the Douglass, 

i860 210 

Democratic, 1864 .... 212 

Harrisburg, 1840 341 

Baltimore, 1844 ^47 

Cook, Daniel P 355 

Cornstalk's defeat 5 

Corporations, Mr. Hardin's 

view of g 6 

Corwin, Thomas, 

219, 233, 254, 278 
Cosby, Fortnnatns . 472, 473, 474 
Courage, a question of. 570, 571 
County attorney, Mr. Har- 
din defeats Governor Du- 
val for 36 

Court of Appeals, salary of 

judges 66 

Relief law unconstitutional 102 
A "refuge of weak law- 

_ y ers " 497 

Court, general, decision on 
"relief" ID2 

Court-house, reminiscences 

499-508 

Courts, old and new, confu- 
sion resulting from . . 138, 139 
Closing sketch of new 

M court • • Mi, 142 

New court party for Jack- 
son I43 

History of controversy 

(see chapters x, xi, and xii . 
Crawford, W. H., Mr. Har- 
din's opinion of ... . 355 

Circuit judge . 47I 

Craycraft, Alexander ... 351 
C reason murder case . . . 284 
Crenshaw, B. Mills .... 368 
Criticism, nothing above . 557 
Crittenden, Henry . . 109,200 
Crittenden, John J. 196,343,588 
Anti-relief leader .... 107 

Letter to Clay j$ 5 

Candidate for United 

States Senator 
Graves-Cilley duel 
De Parcq against Rice 
United States Senator . 
Mr. Hardin's opinion of. 356 
Broadnaxand the jury 479,480 
Political services .... 584 
Breach with Clay . . 585, 586 
Letter to Orlando Brown 586 
Letter from Brown . . 587 
Relations with Mr. Har- 

_ d 'n 58S 

Crockett, David . . . 219, 277 
Cunningham, Charles M. . ' 203 
Cushing, Caleb . . . 
Snarling Thersites 
Cushman affair . . 



156, 5S4 

253 
329 

344 



2 54, 574 
. . 278 
• • 366 



Danville 



•5 



Davidge, Reason H. . . ,38, I42 

Davidson, James . . 366 

Daviess, Jo H .' , 7 s 

Davis case - 7 g 

Davis, Amos 2l? 

Sketch of 2I7 

Davis, Garrett . . .'.5,8,520 

Debate with Preston . . S n 

Sketch of s , 

Robinson and Brush me- 
morial 5 ^g 

Davis, Samuel ...... , Q , 

Davis, Thomas .... ,03 



. 607,609 

• • 613 

. . 28 

. . 214 

. . 248 

and 



170 
I76 

579 



I »eath of .Mr. Hardin . 

1 dignity in dying . 
I debates, societies for 
Mr. Hardin's skill in 
Of Clay and Pope . 
Of Pope, Grigsby, 

Stone 2 j X 

Of Hardin, WicklifTe, and 

Grigsby 5I7 

Of Davis and Preston . . 521 
Of Marshall and Hardin 532 

Allusion to 573 

Report of in constitutional 
convention cut down . 532 
Democratic party for con- 
stitutional reform . . . 510 
Beguiling the Whigs 512, 513 
De Parcq, Rev. Alexander, 

sketch of 328 

De Parcq against Rice 

n u t L I95, 327 ' 33' 

Desha, Joseph 

49, 6 4. 70, 109, 137, 138, 153, 218 

Sketch of 50 

Vetoes repeal of new 

court j. 2 

Desha, Lucius, sketch of . 530 
De Tocqueville on American 

bar 

Devil and his two friends . 
Diasyrm, Hardin dubbed by 

Prentice 

Dickens, Charles, on Wash- 
ington city 232 

Disraeli, Isaac 563, 568 

Dixon, Archibald 

. . . 5i8, 520, 586,588 

Leader in convention . . 530 

Sketch of 5 g 2 

Defeated for governor . . 583 

U. S. Senator ^g Q 

Dixon, George x 6 7 

Dobson and death r IS 

Dog speech . 4Q5 

Domestic life and relations 164 
Dow, Lorenzo, at Bards- 
town 

Downes, Rev. William . 330 
Drunkenness, a definition . 
Duane, secretary of the 

treasury 220 

Duel between Rowan and 
Chambers , 7 8 

D ^" i,1 f J ' V •• ■ 39- 40.' 41, 170 
Mr. Hardin s speech 

against 41, 46 

Duke, The 567 

Duke of Buckingham . . . 379 
Dunmore's.expedition ... 5 

Durrett, Reuben T 343 

Duval, Governor William 

P 

Member of 

bar 

Original of Washington 
Irving's "Ralph Ring- 
wood," , 

Sketch of ,82 



162 
604 
181 



• ■ -33- 36, 172 
Bardstown 

171 



194 

Eaton, John H. . . ,,. 

Education 5 22 

Edwards, Ninian 

104, 143 

• 3i, 34 

5'2, 513 

5i6, 517 

535 

287 

2 

Emmett, Thomas A 169 

Evans, Robert I -X 

Everett, Edward . . . . ! 219 



91, 100, 
Ehzabethtown . . . 
Emancipationists . 

Open clause . . . 

Clergy suspected 
Emerson, Ralph Waldo 
Emigrants, sale of. 



Fairfax grant to Martin 

Hardin . . . 
Falls of Rough . 
Fauquier county, Va 
Federal Hill . . . ." . \ 
Federalists . . ' .'- 

gpfS, -. '.'.'41, 

riddle in politics . . 
Fillmore, Millard . . .' 2I g 
Filson, John .... 
Finley, Rev. Samuel 

Finnell, John W 

Flaget, Bishop, on innova- 
tion 

Fletcher, Thomas . . 69,' 70, 
Klondian Huguenots . 
Flournoy, Matthew .... 

Flush Times \ 

Foote, Henry S. . . , , '. . , \ 
Foreign immigration . ". 552 
Forsythe, John .... 5 i 
Fortification bill, Mr. Har- 
din's speech on . . 257 

France .... o ,„' 

F, c -m *o5» 

rankfort .... ,. -,8 

Mob at '. . . 3 . ' 

Agitation of capital remol 
val 

Franklin, Benjamin, on be- 
nevolence 

Free negroes 

Speech of Mr. Hardin 
against banishment 547, 

French, Richard, sketch of . 

Funerals, public, Randolphs' 
remarks 84 



617 

357 
4. 8 
182 . 

247 

490 

251 

611 

8 

io 3 

53 2 

"39 
139 
1 
236 
288 
176 

553 
, 62 

274 
55i 
161 
366 

552 

581 
546 

549 
252 

,86 



162, 233 

530, 537 



Gaming 

Garfield, Seleucius 
Garland, A. H . 

„ , _ 493-507,517. 599. 607 

Oarrard, Governor James . 468 

Genesis ■ 6n 

Genius, the pollen of . . . i 72 
George's creek settlement . 4 

Ghent, treaty of 4? 

Gholson, Richard D . . 530, 584 
Glenn, David, a pioneer . . i 7 
" Goliah of Gath " and Mr. 

Hardin - 2 g 

Government . .. [ 524 , 557 

Government clerks . . 238, 239 
Governor of Kentucky 152, 37.4 
Graham, Dr. C. C. . 40, 291) 322 

Graveyards 6 J4i 6l5 

Graves, William J. . . . 252,253 

G ra y- Pat ■ 334,' 335 

Green against Biddle . 324, 326 
Green county .... ,4 

Green Duff '. I43> Ip4 

Green.John Ic , 7 , 497 

Green river settlements . . 17 
Greenup, Christopher . 15, 47I 

Greenville c 

Greer, Larry 284 

Grey Eagle and Waggoner . 15 

Griffin, Frank jg 

Grigsby, W. R. . . 251, 334, 517 
Grundy, Felix . 15, 16, 20, 27,36 
Member of Bardstown 

bar , 7I 

Sketch of ..... . i 7?) i 7 q 

Author of circuit courts . ' 468 
Guthrie, James 520, 526,527, 530 

Hayes affair 201, 637 

President of convention . 518 
Mr. Hardin's criticism . 574 



Haggin, James 102, 137, 138, 14* 
" Must be hastened " . . 139 
Hand, accidental injury to 

560, 562 



INDEX. 



XVII 



Handwriting of Mr. Hardin 

" 235, 33° 
Hard times after 1812 ... 99 
Hardin, origin of family . . 2 
Origin of name .... 3 

Hardin, county of . . . . 19,31 
Hardin, Benjamin, Sr., 6, 10, 11 
Hardin, Ben (of Scotland) . 618 
Hardin, Ben . 2, 65, 76, 156, 159 
164, 205, 210, 214 

■ ige, i-3°- 

Parentage 10 

Birth 13 

Brought to Kentucky . . 13 
Incidents of early life . . 13 

At school '4 

Early taste for racing and 

cards 14 

Barry's school 15 

Fairly educated .... 20, 22 
Studies law with M. D. 
Hardin and Felix Grun- 
dy 22, 27 

Locates at Elizabethtown 31 
Riding the circuit .... 33 

Marriage 34 

Personal appearance and 
dress when young ... 35 

Bray's case 35.3° 

Removal to Bardstown . 36 
County attorney .... 36 

May's case 3 6 

Early success. 36 

Commonwealth's attor- 
ney 37 

Enters political life ... 38 
In the State Legislature . 38 
Author of dueling law . . 39 
Speech against dueling . 41, 46 

Age, 30-40. 
Candidate for Congress 

in 1816 47 

XIV. Congress 49 

On committee on "Sol-/ 

diers," etc 5 1 

Speech on British treaty 52, 54 
Opponent of Madison's 

administration .... 54 
Relations with Mr. Clay 54 
Speech on direct tax . . 54, 62 
Opposition to U. S. Bank 62 
Retort on Mr. Clay . . 63, 64 
Favors compensation law 66 
Declines re-election ... 66 
Visits his birthplace . . . 67 
Virginia debating society 

67, 69 

Lodgings 6g ., 

On Claims and Currency 70 
Speech for repeal of com- 
pensation law . . . . 75, 76 
Again elected to Con- 
gress, 1819 77 

Admission of Missouri . 79, 84 
Favors banks in District 

of Columbia 86- 

Opposes South American 

mission 88 

Opposed by John Hayes 

for re-election .... 89 
Debates between them . 90 

A free lance 92 

Congressional labors ... 93 
Apportionment, remarks 

on 93. 9 6 

Corporations 96, 97 

David Trimble 97. 98 

Age, 40-49- 
"Old court" leader ■ ■ ■ ros 
Speech on reorganizing 
act no, 136 



Persi n.iliv assaulted . . 

Shai p's assassin . . 

De< .Hum to " old ( ■ ■ 1 1 r t " 143 

ll.irclm .mil Jai kson . . 

Underestimates Jackson 

Conservatism 

Elei t ,\, 1832 

Whig party SU PP°' ted . 151 

Death, of son William . 
In Si.u. Senat< . 1 
Supports Clay and Adan 
Contest |wuh Stillwell 

Heady 157 

\. mi in State Senati . 
Friend of State library . . 1 , 

ll to electors .... 160 

Personal traits .... 153, 164 

Personal appearance 

164, ., 560 

Horseback journey in 
winter 

Domestic affairs . . . 16. 

The lone stirrup leathei 

Mr. Smith's oft-told ad- 
ventures 166 

Cholera in 1832 

Colloquial powers .... 167 

Marriage of daughters 

i'>6, 167 

Ben Chapeze's last illness 

'97. >9 8 
Opinion of C. A. Wick- 

liffe's oratory 211 

Wickliffe and Hardin con- 

• trusted 211 

Resigns as senator . . . 213 

Age, 49-53. 
Candidate for Congress 

1833 213 

Dr. Christopher A. Rudd 213 
G. D. Prentice on the 

race 215 

Circular address . . . 215, 216 
In XXIII. Congress . . 
Letcher-Moore contest 

218, 219 
Committee organization . 219 
Speech on removal of de- 
posits 220, 228 

On adjournment 

Thomas Corwin .... 233 
Federalist senators . . . 234 

Handwriting --35, 506 

The Bardstown 1'. M . . 

Clean politics 

Estimate as a member . . 237 
A "terror" to the li'uise 238 
Unpopularity in Washin 

ton — the causes . . 238, 239 

On libraries -'39, 240 

Naval lobby | 

Criticism by H. A. V 

243, 243 
Alexandria canal bill . 243, 245 
Speech on the I»i 

lobby 244, 245 

Candidate for Congress 

in 18,5 246 I 

John Pope 17 

In XXIV. Congress ... 251 

( In judiciary 254 

Abolition 255 

Fren ns . • • .• ■ 2 5° 

Speech on fortification 

bill ?57-274 

Decline of .Mr. Cambre- 

leng 

\_;.unst admission ofMich- 

igan, etc 275 

Close of Congressional 

career a 75 



Mr II 
III. I ' 

1 

I 

I >i 
I '1 

opini 

Biddle « 

1 

Caren 
Practicing in M 

I 

. 1 \ 1 • 4 

Speech al II an 

«' 
1 1 

K. 1 I lui ■ 

ice ... . 
U. S. senati r il 

I 

1 3 «o 

Provincialism . 

Clay and P 

Hardin . . . 
En rapport with thi 

352 

Choate's bi igr iphi 1 

Hardin 

Collisions with t la] < 

( Ipmion of . . 
Reminisi ence ol Wi 

and Hardin 

I . ',1 Adams and 1 1 

\\ . 

II. 1 

1 1 \v. 1 . Barry 

Defense ol 

■•. 6o-<6. 

Sketch of affair with I 

ernor William I ' 
Secretary 
Attempted rem 

B Kinl 
ifirmatioD . . 

Owsli ■ . . . y 

dpi: 

478 
I '.re whom he 

tii s 
! 
Intellectual en 

I attainments 4 

« 
The 1 
! and 1 run 

Rel.it 

and witness* 1 

tri il 
\ 
lawyership « 

raiment 



XV1U 



BEN HARDIN. 



Oratory, elocution, etc. 

494-497 
Tlie Spanish needle case 497 

An original man 498 

In the court-house . . . 499 
Attacking "old Ben". . 499 
" V'ea! yea! Benjamin " . . 500 

Cy Hultz 501 

Brashear's case . . . 502-505 

Watson's case 505 

Title from Almighty . . . 506 
An agricultural problem . 507 
Clem Hill's audacity . . . 507 
"Good morning, Mr. 

W " 507. 508 

Mimetic faculty 507 

Original opposition to con- 
stitutional change . . . 509 
Favors reform in appoint- 
ments 510 

Effect of breach with 

Owsley 511 

Cceur de Lion of reform . 512 
Convention address in 1847 513 
Labors for convention . . 514 
Views of government . . 514 
Elected delegate to con- 
vention 517 

Debates with Wickliffe 

and Grigsby 517 

Hardin and Helm debate 518 
Sketch of career in con- 
vention 519, 532 

Age, 66-68. 

A slaveholder 540 

Remarks on slavery . 542, 543 
Supporting slaves .... 544 

A kind master 545 

Suits for freedom . . 545, 546 
Speech against banish- 
ment of free negroes 

_ . . 547-549 
Opinions of sundry sub- 
jects 550-558 

Personal traits .... 559, 571 

Dress 560 

Fond of sports 560 

Injury to hand 560 

Sundry physical.intellect- 
ual,and moral attributes 

562, 571 
Incident at Litchfield . . 564 
Literary requisitions . . 565 

Abstinence 565, 566 

Habit of soliloquy . . 568, 570 

Courage 570, 571 

Tom Marshall's criticism 

573. 574 

Cushing's attack .... 575 
Various opinions of Mir. 

Hardin 575 

A diasyrm 579 

Keeping friends in coun- 
tenance 581 I 

At the bar, 1850-51 . . . 582 
Elected to State Senate, 

1851 582 { 

Visit to Calhoon 583 

Course on election for 
United States senator 

586-588 
Letter to William John- 
son 590 

Senatorial service .... 590 
Character as a politician . 591 
Besetting infirmities . . 592 
An old Kentucky home 593 
Good humor and hospi- 
tality 594 

A loyal son 594 

Beneficent influences . . 594 

Life in Pardstown .... 596 



A book lover 596 

Fond of manual labor 596, 597 
Death of son James and 

sketch of 598 

Death of daughter Emily 598 
Sketch of son Rowan and 

his death 598-600 

Mr. Hardin's greatest 

sorrow 600 

Early respect for religion 601 
An outside creed .... 602 

A Bible student 602 

A lobby Methodist .... 603 

Favorite hymns 603 

A camp-meeting incident 

603, 604 
Bishop Kavanaugh . . . 604 
Rev. William Downes . 604 
Belief of justice in the fi- 
nal account 605 

Approach of age .... 606 
The treacherous saddle- 
girth 606 

A fatal accident . . . 606, 607 
Bill and freedom . . . 607,608 
Dream of the contested 

will 608 

Publishes his own will . 608 
Joins the church .... 605 
Brief hope of recovery . 609 
Death of Mrs. Hardin . . 610 
M. D. McHenry's last 

visit 610 

The reading of Genesis 

and the promise . . 610,611 
Interview of General 

Preston 611, 612 

Patiently waiting .... 612 

Death 613 

Burial in Washington 

county 615 

Proposal to remove re- 
mains to Frankfort . . 615 
Hodgenville speech . . . 637 
Books referring to . . . . 638 
Last will and testament . 639 
Hardin, Betsey, as a bride 

34. 35> 164 
A devoted wife .... 164 
Beneficent influence over 

her husband 594 

Her piety 601 

Death 610 

Hardin, B. Rowan 

363. 384. 385, 599 

Youth of 164, 165 

Humorous traits . . . 165, 166 

Marriage of 167 

Speaks at Elizabethtown . 351 

Sketch of 598, 599 

Hardin, Charles A 580 

Hardin, James P., birth of . 164 

Marriage 167 

Sketch of 598 

Hardin, Colonel John 

4, 5, 7, 8, 9, 203 

Sketch of 19, 20 

Hardin, Lydia 4, 5 

Hardin, Mark (the elder 4,5,6,8 
Hardin, Mark (son of John) 8 
Hardin, Martin (of Fau- 
quier) ... 2, 4, 8, 10, 203, 617 
Hardin, Martin (uncle of 

Ben) 4, 5, 6, 8 

Hardin, Martin D. 22,23, 27.203 
Suggestions to young law- 
yers 29 

Sketch of 51 

Hardin, Mary 4, 5 

Hardin, Rosa 12 

Hardin, Rosannah .... 4, 5 
Hardin, Sally, marries Geo. 
Dixon 167 



Hardin, Sarah 2,4,5,15,203,294 

Sketch of 10, 12 

Hardins, The Scotch . . . 618 

Hardin, Warren 12 

Hardin, General William . 39 

Sketch of 6 

Hardin, W. W 152, 604 

Harding, H'Arding, etc., . 3,4 

Harding, Aaron 286 

Hardinsburg 283 

Harlan, James 252 

Sketch of 253 

Harlan, John M 253 

Harrison, Dr. Burr 

« • ur u 155 ' '77, 2M.594 
Harrison, W. H 341, 342 

Harrodsburg 323, 341 

Hartford 15,16,17,583 

Haskins assaults Hardin . 136 

Haweis, H. R 276 

Hawes, Albert G. 

217, 234, 252, 254, 255 

Sketch of 218 

J. Q. Adams' criticism . . 234 
Haycraft, Samuel .... 14 

Hay, Preston 575, 576 

Hayes, John, oratory ... 89 
Opponent of Mr. Hardin 

for Congress 90 

Member of Bardstown bar 171 

Rare genius 172 

Sketch of 198, 203 

Helm family 9 

Helm, John L. . . 164, 204, 344 
Helm and Hardin debate 518 
A question of sanity . . . 569 
Executor of Mr. Hardin 

608, 609 

Helm, Lucinda 177, 194 

Birth and marriage . 164, 165 

Helm, Rev. S. L 283 

Henry, John F 91 

Heredity, Mr. Hardin's be- 
lief '" 554 

Hewitt, Judge 470 

Hill, C. S 507 

Hise, Elijah 204 

Hite, George W 329 

Hodgenville speech .... 638 

Holmes, O. W., Jr 487 

Holt, Joseph . . . 212, 486, 578 
Homer, a favorite of Mr. 

Hardin 16 

Homicide, a peculiar ... 35 

Hopkinsville 15 

Horse-racing 14 

Houser, Samuel T 493 

Howell, George 167 

Huguenots 1, 4, 10 

Hugo, Victor 21 

Hultz, Cy .... 491,501,502 
Humor of Mr. Hardin . . 276 

Hunting 5, 7 

Huston, Mark E 530 

Hymns, favorite of Mr. 

Hardin 603 

Hynes, Nancy .... 186 190 

Hynes, Andrew 31 

Hyperion and the Satyr . . 160 

" I," too much emphasis on 280 
Imagery, Mr. Hardin's pow- 
er of 487 

Immigrants to Kentucky, 

character of 168 

Indians . 5, 9, 10, 17, 18, 19, 254 
Slay a Huguenot Hardin 2 
"Indian Bill " Hardin ... 6 
Indomitable will of Mr. Har- 
din 562 

Innis, Harry 359 

Innocent men never pun- 
ished 550 



INDEX. 






Intuition, Mr. Hardin's le- 
gal 33« 

Irvine, James W. . . . 520, 584 

Irving, Washington ... 29, 194 
Sketch of Governor Du- 
val 182 

Isaiah and Job 603 

Jackson, Andrew . . 47, 50, 174, 
175. MS. 24°> 249. 2 5°. 255 

Sketch of 146, 151 

Charges "bargain and in- 
trigue " >53 

Jacksonjand Adams ... 153 

Policy of 213 

Reviewed by Mr. Hardin 223 
Van Buien and Jackson . 243 
Texas annexation .... 347 
" King Jackson" .... 568 
The hero and LL. D. . . 568 
Jacob, the patriarch, imita- 
ted 610 

James, Thomas 530 

Jefferson county 17 

Jefferson, Thomas . . 47,50,145 

Johnson, Cave 219 

Johnson, Francis ... 91, 92, 96 

Sketch of 87, 97 

Johnson, John T 91, 96 

Sketch of 9 1 

Johnson, Madison C. . . . 138 

Johnson, Richard M. . 39, 49, 64, 

66, 76, 77, 91, 155, 156, 159. '79. 

217, 240, 252, 254 

Sketch of 217 

Candidate for Vice-Presi- 
dent 342 

Miss Martineau's sketch 342 

Johnson, Robert 39 

Johnson, William 

480, 507, 59°. 607 
Jones, Laban, the bleating 

preacher 5 01 

Jones, Live-Forever, and 

Mr. Hardin 500 

Jones, Walter 169 

Journal and Focus . . . 214,469 
''journal, Louisville . . . . 214 
Judicial era, the great, in 
United States 169 

Kanawha, battle of ... . 5 
Kangaroo ticket in 1859 . . 252 
Kavanaugh, George W. . . 520 

Sketch of 53o 

Kavanaugh, Bishop, sketch 

of 604 

Kelly, Charles C 518 

Kelly, Judge William L. . . 473 
Kendall, Amos ... 66, 107, 247 

Kent, James 23 

Kenton, Simon 25,70 

Kentucky 5. 6, 341 

Immigration to 13 

Heroic age of 20 

Deterioration 20 

Effect of war of 1812 . . . 99 

Whigs in power 15: 

Fidelity to Clay 160 

Divided between Pope 

and Clay 248 

Character of people . . 283 
The Kentucky jury ... 295 
Treatment of Sebastian . 356 
Mr. Hardin's admiration 

for ... 553 

Its constitutions .... 509 
History of slavery in . . 540 
Its illustrious dead . . . 616 
Characteristics of people 

282, 583 
The nomadic Kentucki- 
ans 580 



Key, Marshall, and Mr .1 1 

din . . 980, 

Kincheloe, Jesse W, . . . 575 
Kins Jackson's men .... 5 

Kinkead, Georgi B 368 

" Kitchen Knife " . , . 63, 1 
Knott, an I rish teai hei . . 1 1 

Knott, J. Proctoi 14 

Know-nothings 47 

Ladies, imprisonment of . . 
Lapsley vs. Brashear ... 1 • 
Last hours of Mr. Hardin . 612 
Law, study of formerly . . 23 

Complexity 

Decisions little known . . 25 
Lawrence, the lunatic . 239, 240 
Lawyers, suggestions to 

young 

Habits . 

Immigrants from Virginia (68 
Characteristics of early . 168 
Burke's opinion of . . . . 168 
Founded government . . 16 9 
New lawyers at Hardins 

burg 283 

Attorney from the other 

world 286 

Monotonous routine . . 
Clay and Hardin com- 
pared as . . 350 

James Buchanan's opin- 
ion oi Kentucky law- 

/ers 353 

Mr. Hardin's relation to 

bar 485, 486, 49' 

Lawyership 331,349,486,499,508 
Leader, Mr. Hardin in con- 
stitutional convention . . 511 

Lebanon 8 

Lee, Wilford iy5. >9 6 

Lee, Colonel Phil 195 

Legal profession 22 

Legislative humor .... 276 

Legislature . 38, 39, 66, 100, 102, 

108, 140, 584 

Indictment of 138 

Resolution on Sharp'-. 

death 

Leslie, Preston H 584 

Letcher, Robert P. 236, 251.344, 
361, 567 

Sketch of !i8 

Letters, two disastrous . . 347 
Mr. Hardin to W. John- 
son 59° 

Lexington 5. 99, 364 

Library, old law 

Mr. Hardin's exten-i\ e 

Mr. Hardin's aid to State 159 

Lincoln, Abraham 

Lindsay, Thomas N. . . 53'. 584 
Linthicum, Thomas P. . 329,607 

Litchfield 564 

Literature 287, 565 

Lobby, The Energetii 

" I gi ibin and hard cider" 

campaign 34 2 

Logan, William 77 

Lord Nelson's Life by 

Southey 556 

Louis Phillippe 255 

Louisville . . 15. 99>5 2 5. 5*6, 552 

Love, lames 217 

Sketch of 218 

Lowndes, William . . . . 62,87 
Lusk, fudge Samuel ... 

I'hiltenden . 91, 217, 218 
Lyon, Matthew 218 

M ,, hen, Willis B 520 

on county 



'I I 

< 

M annal in, Virgi 

M .111 'm 

I ..I 
Marion • ounl • . . 

M hall, I 'i \ K 

Sket< h ol 

Mai hall, Hu iphrej snrl 

th' 1 
Marshall, John I. 

>k'-|. h "f . . 
M 11 : , .'1. I \ 

\I o th ill, 1 

Cn: Mt H .1 

-■7« 

Debate with Mr II 
\1 artineau, II irrii 1 
M 1 ion, I ■ -1 1 11 - » 

Matting!; 1 

Mays case 

Maj es, I laniel 

Mayes, Ri< hard I. 

Mi \i' r m 1: . io,, mm 

Mi v .r • . William 

\l Conoi hie. I 'r. I B 

Mi Creery, I 

M Doweil, Di Ephraim . . 

McDutii' .' . 

McElroy, James 

M . Hem s family 
McHenry, H nry D 
Ml Henry, John II . 
M, I I .rtin 1>. . 

490, 584. 5 . 

Sketi h of • 580 

McKee, G 

Ml Kee, Samuel . : 

Mackenzie, Henry . ■ ■ 

Mi I .am I 
McLean, Alncv . 

Sketchof 

MacNall • • 488 

M Ph rson, M . the nun 

Meade county ... 
Memor; , Mr. Hat 

if ... . 
\l n t e, Ri hard H. • . 17" 
Merrick, M 

land . . . 

Messin 1 

1 

Sketc li of 

M ■ df. 1 as 

Ski 

1 
M thodisi ■ h 

rjists and I ' • • • '' - 
M icican wai 
\l 1 
Mil 



Mill, the water 

Mill I 

.... 1 

Mil ell, Abi 

370. 



• at Frank) n 



XX 



BEN HARDIN. 



Monarchy 550 

Money, variation of value . 6( 
Monongahela river .... 4 

Monroe, Ben 47.5 

Monroe, James 47, 145 

Montgomery, Thomas 88, 91, 92 

Sketch of 87, 97 

Moore, Louis I. 567 

Moore, Thomas I'. . ^17, 520, 531 

Sketch of 218 

Moral and mental attributes 

of Mr. Hardin 562 

Morehead, Charles S. . 344,366 
Morehead, James T. 

160, 204, 243, 261 
Morgan, who killed? . . . 330 
Morgan, General Daniel . . 5 
Morgan, Captain Zack . . 5 
Morris, Dr. Rob 579 

Theory of wit .... 277, 278 
Morns midticaulis .... 282 
Mortgaged lands ..... 100 
Mosely, John, a pioneer . . 18 
Murdaugh kills .Sleeks 289, 290 
Murray, William 359 

Nantes, edict of 10 

Narcissus and Tom Mar- 
shall 287,288 

Nashville 175 

National Republicans . . 47, 214 
Native Americanism . . 520, 521 
Naval Fraternal Association 96 

Naval Lobby 240 

Negro, a runaway .... 389 
Nelson county . . 14, 36, 38, 213 
New, Anthony . . . . 91,92,96 

Sketch of 91 

New court, origin of . . 105, 138 
Judges of, indicted . . . 138 

New Orleans 18, 99 

Battle of 47 

New York, great fire of . . 254 
Nicholas, George 23, 51, 106,137 

Sebastian affair 359 

Nicholas, S. S 209 

Nun, the escaped 327 

Nuttall, Elijah 139, 470 

Sketch of 531 

Offices, sale of 415,416 

Tests for . 524 

Ineligibility to 524 

Ohio county 15 

Old Guard 532 

'■ Old Master " 567 

"Old Monarch" 567 

" Old oaken bucket " . . 157, 158 
Oldham, John P. . . 33, 155, 472 

Sketch of 474 

"Open clause" 516 

Origin of Hardin family . . 1 

Oratory . ir, 211 

Of John Pope 251 

Of Rufus Choate . . 353, 354 
Of Daniel Webster . . . 355 
Of Mr. Hardin .... 494,497 
Kentucky oratory . . . . 553 
Beautiful and effective, dis- 
tinction 556 

Ormsby, Stephen 

, 37,49.7o.77.47i.472 

Sketch of 50,478 

Ovid 287 

Owsley, William 

138,143,155,510,511 

Sketch of 103, 361 

Contest with Mr. H. . . 361 
Mr. Hardin's speech 
against 368,467 

Palmer, Mrs. Emily 387,388, 598 
Palmer, Dr. R. A. . 167, 280, 607 



Parties, political in Ken- 
tucky .... 150, 248, 249, 255 

Parton, James 219, 23. 

Patton, Benjamin W. . . . 138 
Patriotism of the Hardins . n 
Payne murder case .... 247 

Peace conference 210 

Peck, Judge, trial of ... 204 

Pedantry 574 

Penmanship (see handwrit- 
ing) • ■ 596 

Pennsylvania . . . . 3, 4, 10, 540 
Pennsylvania avenue . . . 243 
Pensacola and Perdido rail- 
road 254 

Pensions 219 

Peoria 96 

Personal traits of Mr. H. 

69, !63, 559, 571 
Peters, "the Philadelphia 

lawyer" 239 

Peyton, Bailey 254 

Peyton, Francis . . 363, 364, 368 

Phenix, John 277 

Pickering, Mr., of Massa- 
chusetts 52,62 

Pierce, Franklin .... 219, 254 

Pilcher, William S 592 

Pinkney, William . . . . 52, 62 
Pinckney, Mr., of South 

Carolina 255 

Pitt, William 85 

Pioneer life 18 

Platform of new court par- 
ty 109, 618 

Political character of Mr. 

Hardin 591,592 

Polk, James K. 

219, 229, 252, 254, 348 
Clay and Polk contrasted 351 
"Pontius Pilate" on the 

bench 567 

Poore, Ben Perley .... 237 

Pope family 469 

Pope, John 26, 27, 100 

Sketch of 246, 252 

Pope and Clay 66 

Hardin and Pope . . 567, 568 
Pope, Patrick H. . . . 200, 217 

Sketch of 218 

Powell, Lazarus W. . . 574, 583 

Sketch of 582 

Prentice, George D. 65, 175, 248 
Hardin-Rudd race . . 214, 215 

A diasyrm 579 

Prentiss, S. S. . . 293, 296, 340 
Criticism on Mr. Hardin . 204 

Oratory 295 

Hardin and Prentiss com- 
pared 322 

Preparation of cases . . . 491 

Presbyterian church . . 9,211 

Presidential outlook in '48 . 585 

Preston, General William 334, 

349, 520, 521, 525, 584, 588, 600 

Hardin on Clay .... 63 

Reminiscences of Mr. H. 163 

MacNally 488 

Chinese embassy .... 611 
Priestly, Dr. James . 14, 106, 194 
Prince, the French .... 161 

Proctor, General 49 

Professional characteristics 

340, 341, 485, 498, 495, 508, 546 
Prosecution, ethics of . . . 489 
Proscription of clergymen . 534 

Public documents 236 

Public lands 215, 216 

Public life, close of Mr. H.'s 591 

Qualifications for office . . 524 

Quarles, Tunstal . . 39, 77, 84,87 

Sketch of 78 



Radley, Ichabod 14 

Railroad, lirst company in 

Kentucky x^f, 

Raleigh letter 347 

Randolph, John . . 52, 62, 65, 91 
"Kitchen Knife" .... 63 
Compensation law .... 71 

Public funerals 84 

Ray, Rev. Stephen .... 14 
Reasoning, powers and 

modes of Mr. H. . . . 495, 496 
Redford's History of Meth- 
odism 603 

Reform ... .... 511 

Relief laws, and attendant 
circumstances . 100, 106, 107, 
108, 109, 138, 618 
Religion .... 19, 601, 604, 609 

Removal of deposits {see 

Deposits) . 
Removal of Mr. H. as sec- 
retary 372 

Reorganizing act 

no, 136, 141, 142 

Repartee 280 

Reporters criticised .... 558 
Representation, principles 

of 525 

Representative, functions 

of a. 71, 76 

Republics and monarchies . 550 
Residence of Mr. Hardin at 

Bardstown 593 

Resolutions of '98 246 

Review 0/ the criminal law, 

by Blair and Toulmin . . 25 
Rice, Rev. Nathan L. . . . 327 

Sketch of 328 

Richmond, Ky 22, 27 

Riding the circuit 31 

Perils of 32 

Rifle, unloading a small bore 282 
Riley, Mrs. Kate . . .611,615 
Riley, Thomas W. . 167, 332, 334 
Ringwood Ralph .... 29, 182 
Robertson, Colonel . . .293,322 
Robertson, George 34, 50, 78, 88, 
92, 107, 109, 140 141, 155,156, 
248, 249, 586, 588, 589 

Robinson, William 5 

Robinson, Rev. Stuart . . 536 

Rodney, C. A go 

Rollin, the historian .... 16 
Rotation in office . . . 524, 555 

Rough creek 17 

Rowan, John . . 33, 36, 102, 108, 
138, 196, 198, 476, 489, 

, „ 493. 567, 618 

Sketch of . . 106-108, 177-182 

Clay's dislike 156 

"Mr. Jenkins" 162 

Member of Bardstown bar 

1 71-172 
Wilkinson case .... 291, 322 

Rowan, William 106 

Rudd, Dr. Christopher A. 

, r IQ 4' 2I 3. 217 
Sketch of 213-214 

Rudd, Richard " 77 

Rumsey, Edward 16 

Rust against Larue .... 324 

Salaries of judges 470 

Samson 550 

St. Bartholomew 2, 9 

St. Joseph's college .... 152 

Saline creek, fight of . . . 7 
Salt river, early settlements 

on 17 

San Jacinto 12 

Saturn 574 

Scotch Hardins 618 

Scott, Governor Charles . . 39 



INDEX. 



XXI 



Scott, General Winfield 

274. 34 
Sebastian, Benjamin . . 356-359 
Secretary dynasty .... 145 
Secretary of Slat'.', Mr. H. 

as 364, 367 

Senate, State . .582,584,59 

Sketch of . . >52 

Senatorship, V. S. 

343. 344. 304, 584. 59i 

Serjeant, John 91,169 

Sev, (es . . . . 34-'- 

Shaler, N. L 356, 614 

Sharp, Solomon P. 

39, 41, 46,49. 7'. *° 

Shawnees ' 1 

Shelby, General Evan ... 5 
Shelby, Governor Isaac . . 204 
Silver and gold mines ... 99 

Simpson, James 109 

Simpson, John 39 

Singing, Mr. H.'s fondness 

for 603 

Slaughter, Gabriel ... 39 

Slavery, domestic . . 18, 521, 522 

The Hardins and slavery 540 

History of in Kentucky . 540 

Smith, John Speed 91,92,96,153 

Smith, Samuel 87, 

Sneed, Achilles 138 

Sneering 5 2 7 

Social life ... 38, 379, 380, 593 
In Bardstown .... 161-163 
Washington city . . . 230- 
Society for promoting use- 
ful knowledge 50 

Soldier, the ... . =75. 3", 3 6 3 
Soliloquy. Mr. H.'s habit of 

568, 569, 570 
Solomon as a missionary . . 565 

South Carolina 2 

Sovereignty 554 

•' Spanish Needle," case of 

the 497 

Spanish intrigues . . . 357~35° 
Spalding. Archbishop . . 9, 174 

Spalding, LA 5 2 4 

Sketch of 

Spalding, R. M 581 

Speeches of Mr. Hardin 

Dueling 4'-47 

Reorganizing act . . .111-136 
Reply to S. Heady . . i57" I 58 

To electors 160 

Removal of deposits . 220-228 
Government clerks . . 238-239 

Libraries 240 

Pay to the navy . . . 240-242 
District lobby .... 245-245 
French relations . 256,257-274 

Wilkinson trial 296 

R. Logan Wickliffe's 

case 336-339 

Owsley speech ..... 368 
Kentuckians 111 M e 

525-526 
Retort <>n ( luihrie ... 
New constitution .... 529 
Clerical proscription .537 
Banishment of free ne- 
groes 547 

Hodgenville speech . . 
Speech of C. A. Wickliffe 
in vindication .... 205-209 
Of H. A. Wise mi Mill i 
Of Francis Peyton . . 363-364 
Of Dr. I. L.Waller ... 5^3 

Speed, Thomas 

Spencer's case . . . 33 I- 334. 487 

Springfield, Kv 5. ° 

State debts 528 

Statesman's Manual ... 252 
Statutes revised 209 



Sketi h ol 

John \\ . 



II 
Slirnij 

I 

of 

a 



Stiles, Re\ . Joseph ( . . . 
h M 
Student, M r. II. ..^ a . . , ifi 

Talbott, Albert G 5-" 

1 . . 77. 1 

i 5° 

Tanej , Rogei I!. . . . 
by Mr. II 

r, H. D 

I i . James 

Taylor, John W., of N 

York 5-', 87, 90 

• v, sketi h 

Taul, Micah 

mseh (9 

Tevis, Mrs. J ulia A 211 

- 12, a 

Clay and Van Buren on 
annexation .... 
Thames, thi battle ol 1 „ 50, 204 
The ba girth . . . 606 

The center of the world . . 637 
e distinguished Whig " 568 
; " mis " against Crit' 

den in '51 . . 

I'll.- world moves in all 

things 557 

Theologian, Mr, H. as . 
Theology of a lawyer . . . 601 
•■ Thersites" ...'.. 
" Thinker, an absorbed " . 
Thompson, John B. 

293, 583, 588, 589 

Sketi b of 582 

ison, Phil 

Throwing stones, a reminis- 
cence «7- 583 

Thruston, ( h irles M. . . . 15 

Thurman, 1 rge 351 

I ibei ,the 1> 

Title from Almighty .... 
Titles. \1 1 . H.'s bestowal 

of 

1 obin family ' •' 

Tompkins, Christophi 



Toulmin, Harry 

Sketch of 24 

Transylvania University 
of . . 
Mr. 1 1 favoi lie mode 

y, with Fi 

I 1 iiv eff< ■ 1 B. Se- 



Trimble, l).i\i>l . . 7"- ■'■ 

Sketch of 

Trimble, Robert . . . . > ■ 

ihn 1 

Sketch ol • " 

Triplett, Philip .... 1 • 

Sketch of 53 = 

Tucker, Mr., of Virginia 
Turner, Squire . . ■ 

tch of 

Twain. Mark 

I hi I 

■ U". 
154. I 

tch ol 



1 1 

it 

87 

Wall 48 

Wai 

Wat I I 

W 1 '33 

W.i 

Was! in 

Wa 

1 1 '.1 

Water • P 

W 

I. 

Websti r. I ' 

M 

■ 
II 

1 .... 
Westn 61s 

4 
■'. 

Wills! 

I I 
I 
V. 

u 
\ 

■ M 

v. 

V. 

4 

\ 

I 

I 

I 



1 



XXH 



BEN HARDIN. 



Wilkinson trial, account of 

289, 486 
Mr. H.'s speech . . . 296-322 

Will of .Mr. H 640 

Williams vs. Blair . . . 101, 102 
Williams, " C'erro Gordo" 588 

Williams, Sherrod 252 

Sketch of 254 

Wilson, Turner, in a dilem- 
ma 403 



Windham, William 1 .... 85 
Wintersmith, Hon. C. G. . 280 

Sketch of 566 

Wintersmith, R. C 566 

Wirt, William 169 

Wise, Henry A. . 219, 254, 342 

Criticism of Mr. H. . 242, 243 
Wit and humor . . 276, 277, 282 
Witnesses . . 401, 492, 554, 569 
" Wo ! unto you ' 603 



Wolfe, Nathaniel 334 

Woodson, Samuel . 26, 27, 91, 96 

Sketch of Q2 

Woodson, Samuel H. . . . 139 

Woodson, Silas 520 

Sketch of 532 

Young, Dr. John C 322 

Yulee, U. S. Senator . . . 212 



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